case valuation

90 – Sonia Rodriguez – The Trials of War: Tactics, Strategy & Mindset

In this episode of the Trial Lawyer Nation podcast, Michael sits down with Cowen Rodriguez Peacock partner and attorney, Sonia Rodriguez, to discuss Sonia’s rediscovered inspiration and lessons from Sun Tzu’s “The Art of War,” and the strategies and tactics trial lawyers can utilize from it while still dealing with a pandemic.

Michael opens the episode by telling Sonia about his feelings of frustration about his upcoming case (which is less than a week away at the time of recording) being canceled due to Covid concerns. Sonia responds to this by saying this trend of “getting the rug pulled out from under you,” seems to be the “new normal” for trial lawyers during the pandemic.

The two then begin to discuss how this impacts your case outside of the courtroom, specifically having to invest time and money into a case multiple times due to cancellations, the need to find flexible experts, and the pandemic’s “giant wrench” in your damage evaluations.

“We all know that, even in non-pandemic times, the certainty of a trial date was never really that certain. But now, the prospect of having to prepare multiple times for the trial setting is going to multiply the cost.” – Sonia Rodriguez

The conversation then shifts to what trial lawyers can do in times like these to maximize the value of their cases. Sonia begins by discussing her re-reading of Sun Tzu’s “The Art of War” and its impact on her successes in 2021.

“I’ve been practicing law for almost 25 years, and I’ve never made more money in a one-year period than I have during this pandemic,” Sonia says leading into her first citation from the book (with a notable twist for trial lawyers); “Supreme excellence consists in breaking the enemy’s resistance without [a trial].” This, she notes, is similar to the modern-day strategy, “If you want peace, prepare for war.”

Sonia then delves deeper into this concept by discussing how she prepares for war, or in this case trial, by hiring and preparing our experts, paying for exhibits, and (probably most important) laying plans and evaluating her cases strengths and weaknesses.

“If you know the enemy and know yourself, you need not fear the result of a hundred battles.”– Sun Tzu, “The Art of War”

Building on the subject of the importance of evaluating your case, Sonia presents one of her touchstones for case valuation: Remember torts 101, negligence has two parts. She presents that it’s easy to fall into the rut of evaluating your case based on your client’s damage model. However, if you look at your case carefully, based on liability factors you believe, and go to battle fairly evaluating both components, you will add value. Michael agrees with this, adding that if the defense did something really bad, you’re more likely to get a bigger result.

The two continue this conversation with Sonia explaining how mediators only want to talk about low property damage and pre-existing conditions; subjects to which she responds, “I spit on that!” Instead, she wants to talk about this trucking company, how they have no training protocols, how they’ve had the same types of crashes for the last 3 years, and so on; ultimately aiming to change the framework of the conversation to focus on liability.

“No one really knows what a case is worth. There is no magic formula … . If we, in our heart of hearts, believe it’s worth more, we can get more.”– Michael Cowen

Sonia then shifts the conversation to “attacking by fire,” or, in other words, always coming from a position of strength, even if you have weaknesses in a case. Regarding the weaknesses of the defense, however, Michael adds, “you always want conflict in the other room.” We want to add pressure to the other side to the point that they want out. Adding a final point to the subject of “attacking by fire,” Sonia hones in on her “fun” way to strategize; namely finding the pressure point of the defense and exploiting that weakness.

Moving on to discussing and evaluating the actions of the defense, Sonia cites Chapter 9 of “The Art of War,” entitled “Assessing Strategy Based on the Actions of Your Opponent.” Here, Michael and Sonia discuss how noticing aggression, “frenetic” activity, or threatening motions from the defense are clear signs of fear and, more importantly, weakness. “Especially when you respond with calm,” Michael says, “There’s nothing like that calm, quiet confidence.”

On that note of quiet confidence and taking power from the defense, Michael begins to take the conversation in a different route, breaking down his feelings about the results of cases and how that relates to his self-worth as a trial lawyer.

“It’s not that I don’t care about the result, it’s that my self-worth is detached from the result.”– Michael Cowen

This prompts the closing topic of conversation for the episode, mental health in the practice of law. Michael and Sonia discuss the trials and tribulations of their profession including starting and ending trials, letting go of trials (win or lose), the discipline required to maintain a healthy lifestyle, and being compassionate to yourself. “I think perfectionism is something a lot of lawyers struggle with,” Sonia says, “The struggle holds us back.” The two end the episode by sharing their own strategies for coping with the struggles of practicing law and close with a positive note of constantly seeking to be better in their cases, mental health, business, and practice.

This episode also discusses finding the weaknesses in your case and how to overcome them, the importance of obtaining key information during the initial client meeting, and trusting your intuition.

86 – Joe Fried – Challenging Your Paradigm

In this episode of the Trial Lawyer Nation podcast, Michael sits down with our first podcast guest, Joe Fried of Fried Goldberg LLC in Atlanta, GA, and The Truck Accident Law Firm in Jacksonville, FL. He and Michael discuss everything from challenging your paradigm and evaluating your relationship with money, to utilizing curiosity, skepticism, honesty, and vulnerability in the courtroom.

Michael and Joe jump right into the episode by discussing Joe’s incredible set of case settlements in 2020. Michael opens by asking how Joe managed to get more money on these settlements where others with similar case facts have received less. The two share a laugh with Joe’s response of, “Well, if I can just figure that out Michael,” before getting to his thoughts. Joe attributes his “big change” to challenging his valuation paradigms. He talks about self-justifying why he wasn’t getting the results he wanted, citing such instances as venues, blemishes on cases and insurance situations, and then discovering this was feeding own limiting beliefs. Joe elaborates on this by delving into where his beliefs formed.

  • Law schools neglecting to teach how to value a case.
  • Basing value on our venue or mentor paradigms.
  • Blind adherence to insurance companies’ value.

He began questioning these beliefs and was struck by the realization that he had bought into a paradigm that was NOT of his own making and never challenged it. He says this is the beginning of what needs to be talked about and where we need to challenge why we believe what we believe.

“What’s the value of a death case? What’s the value of a broken arm case? Who said that’s the value, and WHY do they get to say it? Step #1 needs to be to challenge your own paradigm.” – Joe Fried

Joe elaborates by saying he doesn’t like asking for money, not even for a fundraiser, and especially not in front of a jury. He talks about the “money messages” he received growing up from ‘you shouldn’t talk about money’ to ‘it’s rude to talk about money’, and how he examined these things for the first time. He explains how he’s still on the journey and tries to look at these beliefs with a fresh perspective.

“If it’s real that our client is going through something that causes them pain every day… if that’s REAL, shouldn’t it be huge?” – Joe Fried

Joe then brings up a very insightful question concerning case value, so it makes the case real and personal. “What would I think the value is if what happened happened to the person I love most in the world. If it’s worth that for my loved one, then shouldn’t it be worth that for the client? Why should it be different?”

Michael follows up on this by asking Joe to talk about how he learns what his clients have gone through well enough to internalize and analyze. “It’s really hard to do that from behind your desk,” Joe responds. He elaborates by stating why you have to get into the client’s life and “really look around.” Interacting with the client, their loved ones, and even their not-so-loved ones can provide tremendous insight into their lives.

Joe talks then about case preparation and discovery being a journey, and more specifically, getting to a place where he’s able to take the jurors on this journey. He believes we should welcome juror’s skepticism because, if we’re being honest with ourselves, they’re probably the same feelings we had in the beginning. Joe believes these skepticisms are all opportunities to build credibility and should be embraced. He calls for us to be honest with ourselves and to bring our natural curiosity and skepticism to the table, which he aptly calls “channeling the jurors.”

“[You’ve got to do] whatever you’ve got to do to make it real, but the person who needs convincing is YOU.” – Joe Fried

Michael and Joe then move on to the importance of “feeling it” and communicating non-verbally over being “word-centric.” Joe comments how the struggle to find words to express what’s there is an art in itself. He then calls back to the journey of the case by saying part of that journey is translating these things to dollars and cents. He recommends believing in the value of your case and to practice saying your number; and not cowering in fear when confronted with the juror’s reactions. He believes this to be a necessary and “woefully underutilized” skillset.

Michael then shares his own relationship with money. He opens up about how he thought he was undeserving of money, money in this business was “dirty,” and how this belief led him to resist running his firm like a business. Luckily, by realizing this mindset and relationship with money were unhealthy, he was able to work on himself, get out of his own way, achieve success, and enjoy the success he attained.

“The credibility that comes from willing to be vulnerable and honest is DRAMATIC.” – Joe Fried

Switching gears, the two discuss working up cases; following up on a conversion they had when Joe came to San Antonio for a deposition. During that conversation, Michael asked if Joe was doing a trial depo or a discovery depo, to which Joe responded, “there’s no difference to me.” Joe explains there have only been a few times he has taken a depo he knew would go to trial. He believes if he’s going to maximize the result in a case, he’s only going to maximize the result in terms of settlement if he does his best to nail the other side in depositions.

The pair then move on to discussing motivation. Joe says that what keeps him motivated is finally feeling like he’s a good lawyer and can make a difference. He’s interested in seeing the success of his partners and associates, teaching other trial lawyers, and being involved on the industry on the safety side. He makes it a point to be able to teach others and challenges listeners to look for ways that go beyond monetary in cases to affect change through policy and procedures that will save lives.

Michael shares how he always feels guilt when settling a death case and reveals how getting a safety change made one of his clients feel better because it went beyond money. Joe builds on this by adding that his firm often contributes very directly to solutions at the settlement table. He welcomes everyone to consider the level of change and safety that could be attained if everyone contributed in this way on at least one case and closes with two challenges:

  • Take a sledgehammer to your limiting beliefs and examine your paradigm
  • We all have a duty to make a difference for the good of humanity

Michael chimes in with a third challenge to take care of yourself as a trial lawyer, and cites Joe’s 537-day streak on the Peloton as an inspiration. Joe responds by looking back on his 30-year career and how he went from an “athlete” to “anything-but-an-athlete” which affected his health. “[My motivator] was a life or death motivator,” Joe says while talking about his poor health during trying times. He cites the book “Atomic Habits” by James Clear as defining how small changes over time lead to massive change in your mindset. Joe says that his renewed energy from his consistent and improved habits have positively impacted his practice and motivation.

Michael and Joe end the episode by recapping their three challenges to the listeners:

  • Change the way you think about cases and expand your mind
  • Change the industry and make the world safer in your cases
  • Take care of yourself while doing it

If you’d like to contact Joe Fried you can email him at joe@friedgoldberg.com.

Guest Bio

Joe Fried is considered by many to be the preeminent truck accident attorney in the country.  His office is in Atlanta, Georgia, but he has handled cases in over 35 states recovering more than $1 billion for his clients.  He is the Founder of the Academy of Truck Accident Attorneys, former Chair of the American Association of Justice Truck Litigation Group, former President of the National Trial Lawyers Trucking Trial Lawyers and founding Chair of the National Board of Truck Accident Lawyers.  He is among the first lawyers to be Board Certified by the National Board of Trial Advocacy in Truck Accident Law and sits on the NBTA Board.  In addition to his expertise in trucking, Joe is a former police officer with advanced training in crash investigation and reconstruction, human factors, psychodrama, storytelling and neurolinguistic programming.   He is widely known for his creative and unique approaches to preparing and presenting cases and for his ability to craft and present the compelling human story in each of his cases.  Joe handles a small number catastrophic truck crash cases at a time so he can focus his resources on achieving the best possible results for his clients.  He spends the rest of his time working as a trucking safety advocate, author and educator. Joe has authored books, DVDs and articles on trucking and litigation best practices, and has Joe given over 600 presentations on these subjects to lawyers, judges, and trucking industry stakeholders.

 

85 – Chad Dudley – Let Go To Grow

In this episode of the Trial Lawyer Nation podcast, Michael sits down with accomplished attorney and consultant Chad Dudley. Chad is a founding partner of Dudley Debosier, part-owner of CJ Advertising, and co-founder of Vista Consulting. He and Michael will discuss time management, developing and maintaining systems, coaching your attorneys, valuing your cases, and the #1 legal marketing strategy (Hint: It’s not what you think!).

Michael and Chad kick off the episode by discussing the question already on everybody’s mind: how does Chad find the time to own a 50+ attorney law firm and a 60-employee marketing agency? He explains how the two complement each other well, and the key has been to “Let go to grow.” When he started these businesses, he wore a lot of hats because he had to. Yet, as the businesses grew, he had to let go of the smaller tasks that could be handled by others; and to ensure those tasks are completed consistently, he’s developed systems for everything from depositions to file structure. This allows him to spend more time on things he enjoys doing, and more importantly, focusing on the things he needs to be the one to do.

Michael then asks Chad how to set those systems up. Chad explains how the first step in this process is based off the book “The First 90 Days”. You need to determine if the current status of your firm is startup, turnaround, accelerated growth, realignment, or sustaining success. You then start with a broad framework for a system, then work your way down to the details. It’s a very methodical process, but so worth it in the end.

Michael then shares a frustrating experience he had with a past consultant who was trying to prescribe him a system that was meant for a pre-litigation firm, when Michael’s firm was 90% litigation. Chad agrees that pre-packaged systems almost never work for law firms because of the diversity of practices and adds that the owner must determine what type of practice they want before building out any systems.

There’s a common attitude in the Plaintiffs bar that if you build out too many systems, you’re treating your firm like a McDonalds, and each client needs to be treated like an individual. Michael addresses this and adds that the more systems you have in the place, the more you can care for your clients and spend time on things like going to their house to get to know them on a deeper level. Chad agrees, citing the book “Discipline Equals Freedom,” and adds that systems allow you to focus on the relationship, be a better attorney, and deliver a better result to your client.

After an insightful look at why the boss needs to follow systems before his or her employees ever will, Michael and Chad discuss the challenges of transferring their vast knowledge to their employees. Chad shares that when you’re naturally good at something, it’s as natural as breathing; and you’ll likely skip some vital steps when teaching because of that. He encourages attorneys to have someone observe them doing the task, take detailed notes, and help you coach the other attorneys along the way.

Michael then brings up his personal struggle with sticking to the systems that he implements and asks Chad how he avoids doing that. He explains how he has a checklist that he follows for each new system, makes sure he explains why they’re doing it, sets out clear expectations, and designates somebody to hold people accountable. He monitors each system differently, depending on what it requires. When possible, he tries to monitor systems using dashboards and reports.

Chad continues by sharing an ingenious system to prioritize different projects and initiatives at your firm, using a point-based system that will resonate particularly well with the data-driven lawyers listening.

The conversation shifts to a look at Chad’s practice, Dudley DeBosier. With a firm as large as his, how does he keep the value high on his cases? Chad clarifies that they try to be what he calls a “hybrid” firm, which contrasts against low value/high volume and high value/low volume firms. To do this, it’s crucial to identify and rank your attorneys from best to worst, and a good way to identify great cases when they come in. Done give a “tier 1” attorney a very complicated case- it’s not fair to that attorney or the client.

Chad and Michael both hold regular meetings to assign cases a valuation in a group setting. This serves to motivate all the attorneys and bring out their competitive sides and to identify great cases (or bad cases) earlier on in the process. With the bad cases, it helps attorneys avoid spending too much time on them. Citing Vilfredo Pareto, Chad explains how 20% of your effort creates 80% of your results, which translates perfectly to personal injury cases. In fact, he’s found that many times 5% will generate 50% of your revenue and 20% will generate 80% of your revenue. The bottom 40% of your cases will only generate 1-2% of your revenue, meaning the time spent on them is a massive hit to your labor ratio.

The pair closes the conversation with a look at what marketing strategies are working right now. Chad gives a lengthy list of strategies but insists that the most important strategy is performing well for your clients. Strategies like TV ads will bring people to the “restaurant,” but if the food is bad, it’s not going to work. He and Michael agree that the best way to bring in cases is to do a good job working up the ones you have.

If you’d like to contact Chad Dudley regarding a case, marketing, or anything else, you can email him at cdudley@dudleydebosier.com.

This podcast episode also covers why high volume/low-value firms are dying out, why lazy law firm owners tend to have lazy attorneys working for them, finding a person at your firm to hold others accountable, why Michael likes to schedule depos right after the defendant answers, and a plethora of book suggestions! Visit our references page for the complete list of visit Chad Dudley’s bookshelf.

Guest Bio

Chad Dudley started Dudley DeBosier Injury Lawyers with his partner, Steven DeBosier and James Peltier in 2009. The firm now has over 50 attorneys with offices throughout Louisiana.  Chad also founded Vista Consulting with Tim McKey in 2009. Vista Consulting works with personal injury firms all across the country on all aspects of running a law firm.  Additionally, Chad is the CEO of cj Advertising, an advertising company that represents personal injury firms throughout the country. He is a nationally recognized speaker on the topics of law firm management, marketing and technology.

Chad can be reached at cdudley@dudleydebosier.com

 

31 – Malorie Peacock – Proven Techniques for Proving Damages

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In this Trial Lawyer Nation podcast, 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 podcasts 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.

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

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