case strategy

61 – Malorie Peacock – Elite Litigation: Strategies to Maximize the Value of Every Case

In this Trial Lawyer Nation podcast, Michael is joined by his law partner Malorie Peacock for a discussion of strategies they use to maximize the value of every case. They cover steps to take when you first get a case, storyboarding, gathering evidence, conducting a targeted discovery, the benefits of spending 3+ uninterrupted hours on a case, and so much more.

Michael and Malorie start off the episode with a conversation about what you should do when you first get a case to end up with the maximum value. They both agree you need to conduct a thorough investigation right away. Michael describes how he used to believe if he spent money on a case, he had to get a settlement out of it and get his money back. He would spend $20,000 to investigate and find out it was a tough liability theory but still file the lawsuit, do a ton of work, and spend even more money just to end up with a reduced settlement value and an unhappy client. He has since learned to write off these cases so he can spend his time and money on a case with potential for a better outcome. Malorie then explains how you can research the case yourself if you really don’t want to spend money early on, but Michael and Malorie both agree it’s best to hire an expert as soon as possible.

The discussion shifts to the topic of storyboarding early on in a case. Malorie explains how you plan out exactly how you want things to unfold, but you don’t need all the information right away to plan for a deposition. She describes her highly effective outlining strategy of placing information into “buckets” based on what she needs to talk to each of the witnesses about, constantly asking herself, “What do I really need? What makes this impactful for a jury or not?”

Michael then urges listeners not to appear nitpicky to the jury by bringing up non-causal violations. He shares an example of a different lawyer’s case with a truck driver who did not know any English. While truck drivers are required to speak enough English to understand road signs, the crash had nothing to do with this. That is, until they dug deeper and discovered a massive, shocking flaw in the trucking company’s training procedures.

While many of these strategies can be effective in making the case about the company and maximizing case value, Malorie emphasizes how you can’t ignore what happened in the crash. If it’s the worst company in the world but they had nothing to do with the crash, it doesn’t matter. Michael argues you should always try to make it a systems failure, but if you investigate and there is no credible story, you need to change course. They then discuss other places to look for systems failures which are often overlooked, including the company’s post-crash conduct. Finding these creative case stories and being willing to change course if you find a better story are key to maximizing case value.

Malorie brings up that there are lots of places to gather evidence, many of which are often overlooked. Michael urges listeners to go out to the crash site and walk around, look for cameras, and talk to people whenever possible. He also sees Freedom of Information Act requests as a valuable asset in any case involving an industry with regulations. You can see more than just past crashes, audits, and violations. He explains how sometimes you will see a trucking company who earned the highest score in a safety audit because they promised to fix the issues they had, which they never fixed. Malorie accurately replies, “That sounds like gross negligence.” They both discuss other types of companies who break promises often, and how showcasing this can be a valuable tool in showing the jury this company didn’t just make one mistake, they purposefully lied and tried to cover it up.

Michael and Malorie then discuss how they conduct a targeted and specific discovery. Michael shares how forms can be useful, but adds that you need to look at the issues in your case and adjust those forms accordingly. He describes his strategy of conducting a root cause analysis to dig deep into the reasons a crash may have occurred, a strategy which is incredibly useful for any plaintiff’s attorney. Michael and Malorie then agree on the importance of reviewing depo notes immediately after the depo is concluded and share a useful practice tip to make this process more efficient. After reviewing depo notes, Malorie highlights that many attorneys are hesitant to send a request for production for just one document. She disagrees with this thought process and has found doing this shows opposing counsel you know what you are doing and can even put you in favor with the judge.

Malorie then asks Michael to elaborate on a strategy they use at their firm based off the book “The 4 Disciplines of Execution”, where you block out a 3-hour window of time each week to brainstorm on a case. Michael explains how this time does not include depo prep, discovery, or other “defensive” items, but is meant to be spent “playing offense.” Attorneys are directed to do something to purposely move the case towards resolution and increase the value of that resolution. Michael then emphasizes the importance of these being three uninterrupted hours, because “It takes time for things to gel.” If you spend 30 minutes, 6 times in one week on the case, you have to refresh your memory of all the documents and details, and never dive deep into the critical thinking this activity is meant to promote. This is why Malorie spends the first part of her time reviewing every important document in the case, and inevitably this process leads her to ask questions and explore the answers. She urges listeners to not be intimidated by this process, and notes you don’t need to have a specific goal in mind besides to understand the case better and seek answers to the question, “What is this case about?”

Another strategy they use at their firm is “Workdays.” This is where they gather 3-6 people, including both attorneys and non-attorneys, to spend an entire day working through one case together. Malorie emphasizes the importance of everybody participating and being committed to spending this time on the case at hand. This doesn’t work if people come and go or try to discuss a different case. Michael adds that you don’t need an 8-attorney firm to do this. He’s found success in scheduling once-a-month lunches with peers and implementing a similar strategy.

Malorie has also found utilizing focus groups early-on in the case to be critical in understanding juror perceptions about the immediate facts of a case. Michael agrees this strategy can provide valuable insight into the direction you should take a case story, what questions you need to answer and how your client and experts appear to jurors. They then discuss a time they hosted a focus group where only three people attended, which shockingly ended up being one of the most useful focus groups of the entire case.

To wrap up the episode, Malorie notes “You’re not maximizing the value of a case by wasting time on it.” Michael urges listeners to look at each case individually and carefully, then triage it. Some cases are just not great, whether it be because of tough liability, a great recovery, or a client who presents poorly. Malorie aptly concludes by saying, “Maximizing value doesn’t mean getting $20 million on every case… It’s about allocating your time and resources carefully.”

49 – Malorie Peacock – Applying 2 Seasons of TLN to Your Law Practice

Trial Lawyer Nation is proud to celebrate 2 years of podcast episodes! In this Table Talk episode, Michael Cowen sits down for a conversation with his law partner Malorie Peacock for a discussion about the last two seasons, their favorite takeaways from guests, as well as how this show has helped them create their 2020 resolutions.

The episode begins with Michael asking Malorie what she’s learned from the show and how she has been able to use and apply this to her cases. She responds with “you have to choose the kind of lawyer that you’re going to be” as a theme which has come up several times throughout the show. Whether it’s how you formulate your case strategy, how you run your business, or the kind of lawyer you are going to be, the first step is to go after this goal.

But this isn’t always easy and can be a struggle, which leads to Michael sharing his struggles and how he has overcome them. The “salesman in me wants to close every deal,” Michael reveals when discussing case selection. He explains how hard it can be when “you see the dockets getting smaller you have trouble not freaking out” and shares why it is so important to remain disciplined and stick with your business plan. And while a smaller case docket may be a business model for his firm, Malorie brings the conversation full circle by pointing out how not every business model should be the same.

The conversation shifts to a discussion on which episodes discuss how to turn “a good case into a great case” where Michael shares his thoughts on how Randi McGinn’s book and her skills as a former journalist help her dig deep into the story of a case. Jude Basile is another guest Michael brings up as he shares how inspiring it was to have spoken with him and understand how Jude was able to find value (and an excellent case result!) in a case involving an addict at an addiction facility when other lawyers may have turned the case away.

Malorie points out some of her favorite episodes have been those of Sari de la Motte and Michael Leizerman who help explain why you need to “do the work on yourself as well as in your cases.” When defense counsel does something on a case to cause you to react and become distracted, Michael shares how Leizerman has helped him understand “the zen” of it all and why it’s important not to let the other side upset you and take your energy away from your case. He also brings up the quote “how can they be right and we still win” and how this simple statement from Joe Fried has been so powerful in his cases. Malorie and Michael also agree on and discuss how this mindset can be helpful in a case with degeneration, in both liability and damages.

Entering the confession spirit as the year ends, Malorie asks Michael what his strategies are for enforcing what he says he is going to do. He reveals the lesson he has learned when taking on cases which do not fit his business model. Describing a serious injury case involving a TBI not fitting his “case on wheels” business model, Michael shares the extra time spent looking up case law and standards versus with a trucking case where he immediately understands about 95% of the rules and sources to cite and can do so very quickly. “It’s efficiency,” Malorie adds.

The topic of efficiency transitions nicely to another theme in the show, which is how the brilliant attorneys who have been on the show “create and enforce systems” within their firm so they can do the work they need to do on their cases. If you don’t do this then you’re constantly putting out fires and distracted from the work you should be doing. This also applies to the reality of “you can’t be a lawyer 24/7” and leads to a meaningful discussion on having a work/life balance and how burn out can not only impact your personal life but also your cases and effectiveness in the office.

The podcast ends with Michael and Malorie discussing their 3 resolutions for 2020, which include Michael sharing his book deal with Trial Guides and his goal to continue writing, and Malorie sharing her idea on how she will be using the firm’s in-house graphic designer to work up her cases, which Michael describes as “brilliant” and “will scare the crap” out of defense attorneys.

An exciting piece of news shared on this episode is Michael’s commitment to hosting a Facebook Live session every month in the “Trial Lawyer Nation – Insider’s Circle” private group . If you haven’t already requested to join this group, we suggest you do so now in order to participate in the first Facebook Live in January 2020. The exact date will be shared on our podcast social media pages and also via email for those who are subscribed to our emails.

Thank you to everyone who has supported our show for the past 2 years. We look forward to sharing even more great shows with all of you in 2020 as we enter Season 3!

45 – Peter Kestner – Money and Strategy with “The Janitor”

In this Trial Lawyer Nation podcast, Michael Cowen sits down with acclaimed author, speaker, and trucking lawyer, Peter Kestner, for a conversation on going up against insurance companies. Peter’s experience is somewhat unique having started out in the insurance industry working for the second largest trucking insurer in the country, handling truck litigation claims.

Then, after going back to law school, he ran an excess program for a sister insurer under the Travelers Umbrella with 30 of the largest trucking concerns with self-insured retentions (SIR’s) where he would audit their claims files to make sure they had proper reserves. In some cases when it was a high exposure case, Peter would have to interject himself into the case to settle it or make the decision to take it to trial. He was even nicknamed “The Janitor” because he would “clean the messes up.” Not long after, he made a change to become a plaintiff’s lawyer when he decided he wanted to help people instead of defending corporations. Michael points out that Peter’s background and experience from the other side is extremely valuable since he’s been on the other side valuing and negotiating the cases and helping make the decisions.

One of the first insights Peter shines a light on is how much the insurance industry has changed over the years in that they now operate more like the banking industry where it is focused more on getting the premium dollars in to the company versus being in the business of risk management. Peter explains, those are dollars the insurance company works the hardest to bring in, as evidence by all the marketing campaigns aimed at bringing in new customers. They then can use those dollars to invest where, unlike the banking industry, there is little regulation as to what they can put in their portfolios as they are regulated at the state level. He clarifies why this is important looking back to 1991 and the advent to Colossus and Allstate, when the McKenzie company did an audit and determined that Allstate was paying too much in claims and suggested they reduce the amount of third party liability settlements in order to increase profits. The assertion of this being that if an insurer can find ways to bring the number of claim settlements down and pay less in overall claims, it would be an acceptable risk when the practice results in a rare bad faith case against the company, keeping more money overall available to invest. It’s obvious that this strategy has worked, as Peter points out that the insurers have grown substantially to where they are now Fortune 100 companies with billions in assets.

The conversation throughout the bulk of this episode focuses mainly on a deep dive insight on a few cases Peter has encountered and how insurance factored into them. One case referred to several times in this episode is a fascinating case which involved a 63-year-old retired Seal Team 6 member who was hit by an 18-wheeler on a dusty road in Nevada. The details surrounding this case are particularly interesting when you consider the two trucks involved were from the same company and Peter’s client was found to have been 8 feet over the center line and they were still able to settle the case, after 3 days of trial, for a sizable amount. Other details, which you need to hear to believe, involved conflicting positions on who caused the accident from within the company (the driver of the truck and the official position of the company) where a Facebook post helped solidify his client was not at fault.

Peter and Michael give some amazing advice to those taking on trucking cases and how to handle insurance companies including: strategies on how (and why) to separate yourself from the insurance negotiations and trial discussions; defense counsel bluffs – how to spot and call them without getting taken advantage of; how to leverage focus groups to put together the best case for your client, even if it means not entering all the client’s injuries; how 5 seconds of hard data can (and did) defeat a defense theory; and so much more. This episode concludes with a discussion around the top things Peter has seen plaintiff’s lawyers do which ends up leaving money on the table. His insider knowledge is extremely helpful when considering case strategy and the whole episode is worth listening to several times over.

 

BACKGROUND

Peter Kestner has extensive experience with truck accident cases, both as a private attorney and representative for trucking insurers. He is a co-founder of the law firm McEwen & Kestner.  Prior to founding his law firm, Peter served for 10 years as a claims adjuster and litigation manager with one of the largest tractor trailer insurers in the U.S. Peter earned his B.S. from Skidmore College in 1989, and his J.D. from William Mitchell College of Law in 2001. Peter now uses his defense experience to represent individuals injured by the negligent acts of trucking companies.  Peter has also served as personal counsel to policy holders in disputes with their insurers as well as serving as an expert witness in insurance litigation matters. He is the past-chair of AAJ’s Interstate Trucking Litigation Group, Chair of AAJ’s Bus Litigation Group, sits on the Board of Regents for the Academy of Truck Accident Attorneys, he is on the board of directors of Minnesota Association for Justice and he also holds a CPCU professional designation in insurance. He has litigated truck accident cases in 19 different states in both State and federal Court.  He is also Board Certified in Truck Accident Litigation by the National Board of Trial Advocates (NBTA)

  • Past Chair AAJ Trucking Litigation Group 
  • Chair AAJ Bus Litigation Group 2017-present
  • Co-Chair, Amicus Curiae Committee, AAJ Trucking Litigation Group 2011-present.
  • Minnesota Association for Justice Board of Directors 2012-present.
  • Academy of Truck Accident Attorneys- Board of Regents

 

LEGAL BACKGROUND

  • Admitted to Bar, 2001, Minnesota and US District Court of Minnesota
  • Appeared Pro-Hac Vice in Trucking Cases in the following jurisdictions: District of Colorado, Western District of Kentucky, Wyoming State Court, New York State Court, Iowa State Court, Illinois State Court, Wisconsin State Court, Kentucky State Court, South Carolina State Courts, District of North Carolina, Nevada State Court and North Dakota State Court, District of Utah, Texas State Courts, North Dakota State Courts, South Dakota State Courts, District of Mississippi.
  • Education: Skidmore College (B.S. 1989); William Mitchel College of Law (J.D. 2001)

 

PUBLICATIONS AND LECTURES

  • Speaker: AAJ Summer Convention, Understanding the Transport Cycle, Summer 2019
  • Speaker: AAJ Jazz Fest, Negotiation Matters, Winter 2019
  • Speaker: New Jersey Association for Justice, The Defense Perspective, Spring 2019
  • Speaker:  Stratford Webinar- Finding the Hidden Motor Carrier, Fall 2018
  • Speaker: Kentucky Association for Justice- The Broker Defense, Summer 2018
  • Speaker: AAJ Members Only Truck Group- Trial of a Punitive Damage Truck Case
  • Speaker:  New Jersey Association for Justice: Maximizing the Recovery in Truck Cases, Spring 2018
  • Speaker: 2018 Winter Convention AAJ, Negotiations Matter
  • Speaker: National Board of Trial Advocacy, Summer 2018) (Understanding Broker Cases
  • Speaker: Academy of Truck Accident Attorneys, Summer 2018- (Understanding the Transportation Cycle
  • Course Chair and Lecturer- AAJ Trucking College, Spring 2018
  • Course Chair/Moderator:  AAJ Annual Convention, Summer 2017, Trucking Litigation Group.
  • Speaker: Ohio Association for Justice, Spring 2017- Trucking Insurance
  • Speaker: Florida Justice Association Winter 2016: Hell on the Highways, Maximizing the Recovery in Trucking Cases
  • Speaker: ATAA Fall 2016 “Truck Insurance 101”
  • Speaker/Course Chair: 2016 AAJ Trucking College
  • Speaker:  “Rules in Trucking Cases” (AAJ Summer Convention 2016)
  • Speaker: “Mediating the Trucking Case” (Minnesota Association for Justice May 2016
  • Speaker: “Maximizing Settlement in Auto Cases” (360 Advocacy Seminar Spring 2016).
  • Speaker: “Understanding the Transportation Cycle” (New Jersey Association for Justice-Boardwalk Seminar 2016)
  • Speaker: “Mediating Trucking Cases” (Minnesota Association for Justice- Spring 2016).
  • Co-author: “Potential Source of Recovery in Commercial Trucking Case”  The Advocate, Vol. 41 #5 (Kentucky Justice Association Sept./Oct 2013)
  • Author- “SIR vs Deductible” (AAJ Insurance Section Newsletter Fall 2015)
  • Speaker: “Discovery In Trucking Cases” Webinar (Fall 2015)
  • Speaker: “Insurance 101” (New Jersey Association for Justice Spring 2015)
  • Speaker: “Insurance 101” (North Carolina Association for Justice, Spring 2015)
  • Author- “Broker Liability for Negligent Selection of an Independent Contractor”, Minnesota Trial, Volume 37, No. 4 (Minnesota Association for Justice Fall 2012).
  • Author- “Broker Liability for Negligent Selection of an Independent Contractor”, Interstate Trucking Litigation Group Newsletter (Fall 2012)
  • Author- “The MCS-90 Endorsement: No Coverage? No Problem, Minnesota Trial (Minnesota Association for Justice Summer 2008)
  • Author- “Trucking Insurance Chapter” Truck Accident Litigation, 3rd Edition, (American Bar Association 2012)
  • Speaker- “Debunking the Broker Defense” Interstate Trucking Litigation Group Broker Shipper Liability Seminar, October 2013
  • Speaker- “Debunking the Broker Defense” Interstate Trucking Litigation Group Broker Shipper Liability Seminar, June 2013
  • Speaker- “Finding all Defendants in Wrongful Death Trucking Cases” Minnesota Association for Justice Wrongful Death Seminar, May 2013
  • Speaker- “Technology in Trucking Cases” New Jersey Boardwalk Seminar, April 2013
  • Speaker- “ Insurance Company Rules” 360 Advocacy Group, Trucking Litigation Seminar, May 2012
  • Speaker- “ Insurance Company Rules” Kentucky Justice Association, Trucking Litigation Seminar, June 2012
  • Speaker- “ Insurance Company Rules” Tennessee Justice Association, Trucking Litigation Seminar, March 2012
  • Speaker- “Maximizing Your Recovery: Finding Insurance Coverage, Minnesota Association for Justice Successfully Litigating the Commercial Truck Case, November 2010
  • Speaker- “Insurance Company Rules: Strategies for Maximizing Recovery- IPITLA Seminar, September 2009
  • Speaker- “Defense of Trucking Cases, Why Commercial Motor Vehicle Cases are Different, May 2007

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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