case value

88 – Malorie Peacock – The 10 Commandments of Case Management

In this episode of the Trial Lawyer Nation podcast, Michael sits down with his law partner Malorie Peacock, for a deep dive into their firm’s “10 Commandments of Case Management.” In addition to this, the two also discuss how they developed these standards for working up a case, how involving their team was essential to the long-term success of their plans, and how they intend to track progress moving forward.

Michael and Malorie begin the episode by jumping right into Commandment #1: setting up the initial client meeting. They discuss why meeting with the client in the beginning of a case is so crucial for building the attorney-client relationship, obtaining critical information to get the case on file, and making the client feel comfortable. They explain why the standard they landed on was to have the initial client meeting scheduled within 7 days of the case being assigned to a litigation team.

Moving on to Commandment #2, “the attorney will file suit within 60 days of the initial client meeting.” Michael begins by asking Malorie why he got talked into 60 days as opposed to his original thought of “within a week of having the file assigned.”

“I keep going back to the fact that these are minimum standards, so they’re something that we want to be able to apply in every single case, if possible.” – Malorie Peacock

Following up on this point, Malorie explains how one issue discussed on this topic was that the attorneys must meet with the client before filing the lawsuit; reiterating the importance of the initial client meeting and not only having it, but “getting it right.” The 60-day window allows for deeper research and investigation, as well as time to discuss with experts.

Continuing to the next Commandment (#3), the team discusses their standards for discovery; primarily written discovery and the involved mandatory disclosures. The standard ended up being to submit written discovery within 30 days of the date that discovery is allowed, depending on the rules and jurisdiction.

“We wanted to make sure that we weren’t encouraging people to just use forms; that we were still giving people time to think about it.” – Malorie Peacock

After a brief discussion, the team move on to Commandment #4, setting depositions. In this segment, Michael and Malorie explain that deposition dates should be scheduled within 45 days of when depositions are allowed to begin: again, depending on the rules and jurisdictions. “It’s making sure that we’re moving that ball forward to get the deposition scheduled,” Malorie says when discussing being aggressive with scheduling, adding onto this by stating, “delay is the friend of the defense … not the plaintiff.”

Commandment #5 establishes the team’s minimum standard of one file review per month. Michael then recites the detailed list of questions contained in these reviews, which, although they may seem extensive, are incredibly important to ensuring an effective file review.

Some monthly file review questions include:

  • Have we served all the defendants?
  • Do we need experts? If so, who have we hired or need to hire?
  • What should we do in the next 30 days to move this case closer to resolution?

Moving on from internal reviews and updates on a case, the team then discusses Commandment #6: client contact. These calls serve the dual-purpose of keeping the client informed as to the status of the case and what (if anything) has changed, as well as to check in with the client on a personal level.

“[Client contact] isn’t just talking to the client […] it’s a set of specific questions and information that need to be relayed to the client, and that the client needs to relay to us.” – Malorie Peacock

Commandment #7 is simply getting a scheduling order or, depending on the jurisdiction, a trial date; the deadline for this being 120 days from the time that the first defendant files an answer. “We do have some exceptions for this one based on what the court will allow and what the rules of civil procedure in that jurisdiction permit you to do.” The two continue this topic by going into detail on the exceptions they foresee regarding this commandment.

The next Commandment (#8) involves implementing a strategy to set appropriate settlement values for cases: “an attorney must present their case to the weekly roundtable before sending a demand or engaging in settlement negotiations.”

Malorie happily steps forward to discuss this commandment, citing it as “one of [my] favorite things we’ve implemented this year.” Malorie explains how during these roundtables, Cowen Rodriguez Peacock lawyers present their case(s) with the purpose of discussing the case and valuation with the team, with the goal of gaining insight and learning from those with more experience.

Michael moves on to one of the self-confessed “least popular” yet still important Commandment (#9): attorneys must submit a report 90 days before the expert deadline and 90 days before trial, to be filled out and submitted to Michael. The importance of this commandment can be summarized by this short but sweet quote from Michael on the subject.

“Less than 90 days, you don’t have time to fix things.” – Michael Cowen

Michael and Malorie continue the discussion of their firm’s commandments with #10: any case that might go to trial, the attorney must set a pre-trial meeting with Michael at least 60 days before the discovery deadline.

“I want to be able to brainstorm with people, come up with exhibit ideas, come up with testimony ideas, but I need to do it at least 60 days before the discovery deadline because [invariably] I come up with ideas that require us to find additional witnesses, documents, visuals, those kinds of things. You need [those items] created, found, and disclosed to the other side in time to use them for trial.” – Michael Cowen

The episode closes with Michael and Malorie adding that an important factor that cannot be overlooked when discussing the standards presented in this episode is the inclusion of the team’s input during the creation of said standards.

“We turned down people’s ideas, we accepted people’s ideas, but we all had a long, lively conversation about it. At the end, I think everybody agreed with every single standard on the list because they felt heard out, and now they understand the perspective of it.” – Malorie Peacock

This episode also discusses the star rating, the fine line between too much detail and not enough, pre-trial checklists, and more.

 

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.”

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