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Episode

71 – Richard Newsome – Mixed Method Advocacy: A Hybrid Approach to Sharpen Your Trial Skills

By Michael Cowen — 3 years ago

In this Trial Lawyer Nation podcast, Michael sits down with his old friend and seasoned trial lawyer Richard aka Rich Newsome. Rich specializes in automotive product liability cases and is one of the top lawyers in this area in the country. They discuss Rich’s journey to success, his Trial School, the importance of young lawyers trying cases, how to move on and learn from a loss, and coping with fear and anxiety in the courtroom.

They begin the episode with Michael asking Rich about his journey to becoming one of the best automotive product liability plaintiff lawyers in the country. Rich explains how he began working in a federal prosecutor’s office right out of law school, then transitioned into working at a civil defense firm doing automotive product liability work. His transition into plaintiff’s work came after deposing a family in a particularly heartbreaking seat belt failure case. In that pivotal moment, he realized he needed to be working for the other side and representing people instead of massive corporations. He joined a small practitioner and began “knocking on doors” of other plaintiff lawyers to start trying product liability cases as their co-counsel.

Michael then brings up how automotive product liability is a tough field to get into on the plaintiff’s side, to which Rich whole-heartedly agrees. They discuss the difficulties of product liability cases and offer several recommendations for young lawyers looking to get into product liability including “getting plugged in” through AIEG, working for an experienced lawyer with the capital to try these notoriously expensive cases, and many more.

With the field being this tough and cases being so expensive to try, Michael asks Rich about his case selection process. He replies simply, “At the end of the day, you can’t try a product case for less than half a million dollars.” With that being said, the case needs to meet two guidelines: 1) There needs to be a catastrophic injury, and 2) there needs to be a clear fact pattern showing the plaintiff should not have sustained a catastrophic injury. He goes on to explain how even though “this whole area is fraught with mine fields,” the work is incredibly important for society in regards to policy changes and consumer safety.

Rich and Michael then discuss the importance of taking cases to trial and refusing to settle quietly, which leads them to every trial lawyer’s worst fear – taking a big case to trial and losing. They trade “war stories” of their most memorable losses which still haunt them to this day, but reflect on what they learned from those early losses and how they made them better trial lawyers. As Rich puts it, “When you take a big loss, it forces you to improve your game.”

Rich ultimately blames his biggest trial loss on picking a bad jury, which was surprising to him because he was following the voir dire method of some of the most successful trial lawyers in the country. This led him to get 30 of these great lawyers together for a 3-day focus group to try out different voir dire methods. They found that the most effective method was really a combination of a variety of methods, which is now known as “Mixed Method Advocacy.” Michael agrees and shares his experience of learning that one lawyer, no matter how great they are, does not have the ultimate answer of how to try a case. The real growth is in practicing and learning which methods work best for you, then being willing to constantly adapt and learn new things.

This discovery of Mixed Method Advocacy led Rich to start Trial School, a community of trial lawyers who freely share information for the betterment of the plaintiff bar. Trial School is free to join (yes, completely free), easy to access, and full of incredibly useful information for any trial lawyer.

The conversation then comes full circle to where Rich is today after applying the information he learned from those other great trial lawyers. He shares a story of a wrongful death case he tried in an extremely conservative county. He applied everything he had learned from both other lawyers and his own experiences, which resulted in the largest wrongful death verdict ever in that county. They dive into the details of the case and the numerous techniques he applied, which make this verdict even more impressive.

Michael then asks Rich about how he conquers the fear and anxiety associated with going to trial, a topic which Rich describes as “the great elephant in the room that nobody wants to talk about.” He admits to experiencing it and explains how it stunts your performance in the courtroom. He outlines numerous ways to cope with this including beta blockers, “batting practice,” and many more interesting strategies (even learning some from a hypnotist!). Rich feels so strongly about the need for better fear management in the legal industry that he’s dedicating Trial School’s spring program to the topic.

Michael continues on this point by sharing the strategies he’s learned over the years, to which Rich replies that Michael has a huge advantage over a lot of young lawyers due to his experience in the courtroom. Rich explains this by using an extremely helpful analogy about Nascar drivers which you need to hear to fully appreciate, but concludes with “I think one of the biggest solutions to fear is practice.”

They conclude the episode by discussing the need for young lawyers to get experience trying cases. While this can be a challenge, Michael insists that if you offer to try a firm’s small cases they’ll let you. He explains how if you get in there and lose a few times, you learn that you can survive a loss and gain invaluable confidence along the way.

If you’d like to join Trial School, visit www.trialschool.org to apply. You will need two plaintiff lawyer references and to fill out an affidavit stating you only represent people, but it is 100% free and an incredibly valuable resource to every trial lawyer, both young and seasoned.

This podcast also covers the “gifts” they were given throughout their careers, the importance of visuals in trial, the voir dire technique Rich used in his big verdict, avoiding dogma in trial techniques, and so much more.

Bio:

Rich Newsome is the senior partner of the Newsome Melton law firm and represents people and families in complex civil litigation.

After graduating from the University of Florida College of Law in 1989, Rich worked as a federal prosecutor for the U.S. Attorney’s Office in the Northern and Middle Districts of Florida. Rich left the U.S. Attorney’s Office in 1993 and went to work for a large product liability defense firm in Orlando, Florida where he represented manufacturers. After defending a manufacturer in a case brought by a family who lost a child, Rich felt compelled to leave the defense practice and began representing only families and individuals. Since then, for more than 25 years, Rich’s practice has focused on representing people who have suffered catastrophic or fatal injuries.

In 2001, Rich was appointed by the Florida Governor to the Fifth District Court of Appeals Judicial Nominating Commission and served as the JNC’s Chairman during his term. He is a Past-President of the Orlando Federal Bar Association, Past-President of the Florida Justice Association, Past-Member of the Board of Governors of the American Association for Justice, Past-President of the Central Florida Trial Lawyers Association, and is a member of the American Board of Trial Advocacy.

Rich is a graduate of the Gerry Spence Trial Lawyer’s College and was invited to serve as a member of the College Faculty. Rich is a member of the Florida, Texas, New Mexico, and Oregon Bar Associations.

In 2016, Rich was selected as the “Orlando Personal Injury Lawyer of the Year” by Best Lawyers, a peer review publication. In 2015, Rich received the Steven C. Sharpe Public Service Award from the American Association for Justice, in recognition of his representation of Corey Burdick who was severely injured by a defective Takata airbag. The Steven C. Sharpe Award is awarded annually to one attorney and their client.

In 2017, Rich was appointed to the Constitution Revision Commission by Richard Corcoran, the Speaker of Florida’s House of Representatives. The 37 member Commission drafted and submitted 32 amendments to the Florida Constitution which were placed on the ballot and approved by Florida voters to be part of the Florida Constitution in November 2018.

In 2019, Rich was recognized by the National Law Journal as having won two of the Nation’s 100 largest verdicts in 2018.

Rich is a member of the Summit Council, a national group of America’s best plaintiff trial lawyers. Membership is limited to less than thirty trial lawyers from across the country, is by invitation only, and is extended to lawyers who have a proven record of large jury verdicts and are recognized as leaders of the national plaintiffs bar.

Rich is a founding faculty member of Trial School, Inc., a not-for-profit organization which seeks to foster collaboration between lawyers on today’s best trial advocacy methods and to provide free education and practice for trial lawyers who exclusively represent people and families.

 

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Episode

70 – Malorie Peacock – The Method: Our 9-Step Process for Evaluating & Working Up A Case

By Michael Cowen — 3 years ago

In this Trial Lawyer Nation podcast, Michael Cowen sits down with his law partner Malorie Peacock for an exciting preview of his upcoming Trial Guides book on trucking law. They’ll cover Michael’s 9-step method for case evaluation and detail each of those steps, so you can start applying them to your own case evaluation process.

They jump right into this episode with Step 1- initial triage. Michael explains how he derived the term from battlefield medicine, where patients are triaged based on the severity of their injuries and care is prioritized for the patients who need it most. He explains how trial lawyers only have a finite amount of resources, and the decision to put work into a case or not will effect more than just that case. It also takes those resources away from other cases and your personal life.

Michael then shares an example of how he used to work on automotive product liability cases, but his firm has since moved away from them. He has recently rejected five of these cases, even though they were all worthy cases someone will make money from. He chose to do this because these cases don’t fit in with his current docket, and there are other lawyers who will take them and excel at them because they do suit their dockets. Michael even sends his referral attorney to these other lawyers when the referral attorney brings him a case that he knows they will excel on – something that used to terrify him, but he’s since learned it builds an even stronger relationship between him and the referral attorney.

Before moving on to the next step, Michael clarifies that “Initial Triage” is NOT making a final decision on whether or not to accept the case. This step is simply deciding whether you want to look further into the case. In fact, Malorie clarifies that a lawsuit is typically not even filed until about Step 7 in this process.

Step 2 of “The Method” is to gather all the initially available information on the case. This information varies dramatically depending on the type of case it is, but the main goal of this step is to determine a general idea of the liability stories and issues with the case. Michael also explains the importance throughout this process of continually evaluating the case and asking, “Knowing what I know today, is this a case I would take?” If the answer is ever no, consider dropping the case. They conclude this step by discussing a recent example Malorie had of a case where the client was a great person and genuinely deserving, but the facts they discovered during this process made it a case that did not work on her docket.

Step 3 is to identify and analyze all potential immediate causes. Michael explains this as a brainstorming exercise where you record every possible immediate cause of the crash, even the causes that seem unlikely but are possible (for example, a bee in the vehicle). You then divide these potential causes into columns of “winners” and “losers.” Winners are causes which, if proven, help you win the case. Losers are causes which, if proven, mean you lose the case (or need to neutralize them).

After identifying the winners and losers in the case, you move on to Step 4 – conducting a root cause analysis. Michael explains how this concept was first developed by Mr. Toyota, the founder of Toyota Motor Company. Mr. Toyota decided that instead of fixing things when they went wrong, he would try to find the reason these things were going wrong by asking the “5 Why’s.”

To apply this to a case, you take the “winners” discussed in Step 3 and keep asking “Why?” until you find your ultimate root cause. Michael then shares an example from a rear-end case where he took the winner of “the truck driver rear-ended my client” and found “the company did not take the time or effort to train the driver” to be the root cause of the crash. He continues this process for every “winner” and develops multiple theories before he decides which theory he is going to use.

Malorie then re-emphasizes the fact that in an ideal world, you will not have filed the lawsuit yet at this point. They both agree there are times you need to file the lawsuit early to avoid any destroying of evidence, but if possible you should wait.

They move on to Step 5 – drafting the jury instructions. Michael shares how he used to feel doing this so early on was silly, but has since realized it really helps him design the case because he knows what he needs to prove. Malorie adds that doing this also better prepares you for depositions because you know what questions you need to be asking. She also emphasizes to not only look at liability instructions but also damage instructions. This all boils down to, “What do you have to prove?”

The next step in “The Method” is Step 6 – finding rules and anchors. These are authoritative sources for the rules, answering the question “says who?” Michael explains that this is one of the reasons he loves doing trucking cases, because there are so many rules and publications to use as anchors. The more sources that say a rule the better, because defendants are left with two choices: to say they know the rule and broke it, or to say they disagree with all those sources and have their own rule. Michael and Malorie then discuss numerous examples from different types of cases, showing that this method can be used on much more than trucking cases.

Malorie then asks Michael to clarify what an “anchor” is for those who don’t know. He explains an anchor as what you are “anchoring” your rules to. This is an authoritative source or publication of the rule, such as the CDL Manual, a driving company’s textbook, a store’s rules, an OSHA rule, and more. He then concludes this section by explaining how to arm your expert with these anchors to get the most out of their testimony.

Step 7 is to formulate the discovery plan. This is also where you draft the complaint or petition and plead what you need to get the discovery. For example, if you believe the root cause is negligent training, you need information to prove they have a negligent training system. Then, you formulate the discovery plan based on that. Michael cautions strongly against asking another lawyer for their interrogatories before drafting your own. You need to formulate your own based on your theories to prove what you need to prove. You can then use a form to double check and make sure you didn’t miss anything. Michael and Malorie then agree on a fantastic practice tip which makes this process a lot easier and discuss the importance of brainstorming with colleagues.

As discussed earlier, now is the ideal time to file the lawsuit. Then, step 8 is to continually re-evaluate the case. Malorie highlights the need to do this throughout each of the steps as well and to keep notes on what you’ve done so far to avoid repeating any unnecessary work. Michael then explains how as new facts, research, depositions, and discovery emerges, your initial root cause might not be the best strategy anymore and that’s okay. Malorie echoes this statement and adds that too many lawyers are afraid to ask for what they really want in discovery, and more lawyers should be specific and ask for specific documents referenced in other documents.

The above steps were mostly completed before you have all of the information about the case, which Michael cites to further emphasize the point that re-evaluation is key. He then shares some techniques he’s developed at his firm to ensure this gets done by all of his lawyers.

Michael and Malorie conclude the episode with the final step in “The Method”- test the case. Michael explains how the method of which you test the case varies depending on the value of it and lists a number of unconventional methods to do this on a budget. He then lists the advantages and disadvantages of other more conventional methods, including in-person focus groups and online studies like John Campbell’s Empirical Jury. While no method is 100% accurate, they can give you a good idea of where you stand.

This podcast also covers why you should file a FOIA request immediately, how implementing “vulnerability-based trust” by Patrick Lencioni has helped his firm, how to disprove or neutralize “losers” in a case, how Michael applies parts of this method to his employees, why you should research rules BEFORE hiring an expert, why you need to be constantly re-evaluating your case, and so much more.