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92 – Delisi Friday – Back In Action: Post-Trial Discussion

In this episode of the Trial Lawyer Nation podcast, Michael sits down with his Director of Marketing and Business Development, Delisi Friday, for a retrospective look at his recent in-person trial, including prep, mindset and more, only 3 days after the case settled.

The episode begins in a unique way with Michael turning the tables on the traditional Trial Lawyer Nation format and passing the interviewer role to Delisi. She goes on to open the conversation about how Michael is doing after his recently settled trial. “I’m on cloud 9,” Michael says in response, before going into how fun it’s been getting back into a courtroom for his first in-person trial since February 2020. (For the post-trial discussion of that case, check out Ep 53 – The Verdict Is In! with Malorie Peacock.)

After a brief reflection from Michael about just how much he missed in-person trials, Delisi comments on the “calm confidence” he displayed throughout the trial and asks how he developed that skill. Michael goes on to describe working on his mindset and sense of self to “have joy in trial.” He elaborates by sharing how he worked to separate his value as a person and his worth as a lawyer from his trial results. This created an environment where he was not only able to have fun and focus on what he needed to do, but also remove unnecessary pressures.

“You don’t want to say ‘I don’t care whether I win or lose,’ because that’s not true […] but, I just let it go [and] went in there with, ‘I’m just going to have fun, I have a great story, I’m going to tell that story, and I’m going to trust the jury to do the right thing.’” – Michael Cowen

Following a discussion on the differences between this trial and trials in 2019, Michael goes into the unique jury selection process for this trial. For starters, to appropriately space the 45 potential jurors, a larger courtroom was used which came with its own obstacles, such as columns blocking peoples view, the need for multiple spotters, and jurors being unable to hear their peers which limited discussion. “This was probably a little better, because we actually got to talk to every single person and the judge didn’t give time limits. We got to spend a full day doing jury selection, which in south Texas is a rare thing.”

Circling back to voir dire from a conversation about the client in this case and the challenges that arose from her growing story, Delisi cites Joe Fried’s advice from a previous episode (Ep 86 – Challenging Your Paradigm) regarding being comfortable with your number and asks Michael about his number, how he got to it and if he brought it up in voir dire.

Click here to view/download Michael’s opening transcript for the case referenced in this episode.

“I wanted to mention the $30 million number, that was going to be my ask in the case, and I put a lot of thought into why I thought $30 million was fair in that case […] I wanted to get it out there early.” – Michael Cowen

In order to better understand the $30 million number, Michael goes on to describe his client’s injuries and her life before the incident. Before the incident, his client was a charge nurse at a women’s oncology unit in a top hospital in San Antonio. She enjoyed her job, helping others, the comradery with her fellow nurses and some well-deserved bonding time after a 12-hour shift. After the incident, however, that would quickly change.

Following an incident at Big Lots, where a 29-pound box hit her in the neck and shoulders, she would incur physical injuries such as a multi-level fusion in her neck, a rotator cuff injury, back pain and (we believe) a mild traumatic brain injury (mTBI).

Delisi then asks Michael about his decision to not have his client in the courtroom. Michael goes on to explain when your client is there, the jury is focused on them (seeing if they’re fidgeting, timing how long they’re seated/standing, etc.) and are not listening to the testimony. He also brings up that his client had some real psychological problems such as anxiety and depression, and that her moods could be unpredictable; a factor that he did not want to risk when presenting in front of a jury and felt would be unfair to her as well.

The only reason to really call her was fear that [the defense] would punish us for not calling her.” – Michael Cowen

Delisi shifts the conversation to Michael’s use of photos of the client before her injury. Michael explains that to know what someone’s lost, you need to know what they had, and how he had to “bring to life” the person she once was. He goes on to say that he worked with his client, her friends, family, and others to get a lot of photos of her smiling, and doing what she loved, to paint a picture of her joyful life. When talking to Michael after the case settled, one juror described the contrast of those smiling, happy photos to her current, pained photos as “striking.”

One of the final topics Delisi brings up in this episode, is Michael’s thoughts on trying his first case with his law partner (and frequent TLN guest) Sonia Rodriguez. He shares why it was a great bonding experience and while there may have been some differences in approaches, that he knows their trial team “will get there” after working more cases together. Delisi brings this topic full circle by discussing the importance of over-communicating with your staff, especially ones that you’ve not tried cases with before, to assure your trial preferences and processes are handled as smooth as possible for all parties involved.

The episode ends on a lighter note with Michael talking about an experience with his 10-year-old son, a meltdown, and his unique approach to make his son smile. He explains that during a 3-day weekend, his son did not want to do his homework and was less than thrilled about being asked to do so. Michael, attempting to soothe the situation, offered a unique (and very attorney) approach to the situation; a Change.org petition to end weekend homework. The two end by calling out to fans of Trial Lawyer Nation to make a 10-year-old boy (and many more 10-years-olds, for that matter) smile by adding their signature to the petition.

This episode also covers the differences between trials pre- and post-pandemic, Michael’s feelings about settling his case during his return to in-person trials, going against respectable defense lawyers, and much more.

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.

76 – Benedict Morelli – Never Deviate: Telling the Truth, Trusting Your Instincts & Taking Risks

In this episode of the Trial Lawyer Nation podcast, Michael sits down with legendary trial lawyer Benedict Morelli. With several 8 and 9-figure verdicts under his belt from a wide range of civil litigation areas, Ben’s track record as an attorney and advocate is known across the country, from suing Bill O’Reilly for sexual harassment and representing Tracy Morgan in his trucking case against Walmart. He and Michael discuss Ben’s story and path to success, a number of his high-profile cases, how he connects with the jury, and so much more.

Ben’s legal career started over four years before he passed his bar exam, while he was working at a law firm in an administrative role. There, he had the opportunity sit in on several jury trials and jury selections. Because of this, he had a head start in figuring out what strategies worked for him, namely authenticity in front of the jury. He continues to hone his craft today by researching other cases and their results. Interestingly, he doesn’t focus so much on the amount the jury awarded. Instead, he digs deeper into the facts of the case to analyze how great the verdict really was and encourages his team of young lawyers to do the same.

After Ben explains that he simply refuses to play by the insurance’s rules of offering about half of what you ask for, Michael digs deeper into where Ben gets his courtroom confidence from. Ben uses something he calls “Ben Morelli’s personal moot court” and seeks feedback from his friends and family. He also references Tracy Morgan’s trucking case against Walmart, eloquently stating “When I have a royal flush, I don’t play it as a pair of two’s.” If you have a strong case in a good venue, have the guts to stick to your number while also analyzing the risk vs. the reward.

Ben is now at the point in his career where his reputation precedes him, and he shares a SHOCKING story from his case against Live Nation where it worked to his advantage.

Michael then digs in to one of Ben’s biggest strengths, how skilled he is at connecting with the jury. His short answer is, “I am them. I’m exactly them.” He grew up like most of them, doesn’t talk down to them, and ALWAYS tells them the truth. He also NEVER uses jury consultants or a mock jury, which is in stark contrast with how many of our previous guests choose a jury. Instead, he goes into voir dire with no bag, paper, or even a pen and ALWAYS sticks to his theory. He insists that his own instincts and knowledge have served him better over the years, and that “When I bet on the jury, I win.” While a unique approach, this technique has served him so well that he’s been told my numerous judges that he won the case in jury selection. He concludes this topi by clarifying that the most important thing is that you stick to who you are, and find what techniques work for you instead of “drinking the Kool-Aid.”

Ben is also unique by today’s standards because instead of specializing his practice, he takes on a wide variety of cases in different practice areas. His philosophy on this is that if it’s a civil case, he can learn it. He also genuinely enjoys the challenge and takes a lot of pride in the diversity of his practice, something he urges other lawyers to consider before they specialize.

Michael then asks Ben how he motivates and educates his large team of young lawyers.  Ben describes his daily meetings with his lawyers and also with his staff. “I’m never too important,” he continues. Every attorney in the firm knows he will personally read every single thing they write. Michael agrees with this philosophy, and he and Ben discuss why it’s so imperative to stay involved in the litigation aspect of your firm, even after you’ve built up a great team.

The pair ends the episode by discussing two of Ben’s star-studded cases – Tracy Morgan’s trucking case against Walmart and suing Bill O’Reilly for sexual harassment. After sharing what it was like to represent a celebrity of Tracy Morgan’s caliber, he explains how suing Bill O’Reilly was one of the most nerve-wracking cases he’s ever had. They went after Ben, his wife, and his practice “with a vengeance.” The details of this story are shocking and Ben’s decision to stick with the case is truly inspiring.

This podcast also covers individual case lawyers vs. mass tort case lawyers, how Ben orders his witnesses (and why it’s SO important), how to internalize what your client’s been through, the power that plaintiff’s attorneys have, Ben’s record-breaking sexual harassment suit verdict, why Ben chose not to specialize his practice, and so much more. This episode is full of insightful and inspiring stories that are well worth the listen!

 

Guest Bio:

Benedict Morelli is one of the most successful plaintiff attorneys in the country, securing numerous multimillion-dollar results, including a $95M verdict in a sexual harassment case and a $102M verdict against Live Nation. He also helped negotiate a $265M settlement – the largest settlement for a passenger railroad accident in US history – for victims of the 2015 Amtrak train derailment. Mr. Morelli and his firm often litigate high-profile cases, including representing comedian Tracy Morgan in his lawsuit against Walmart and being one of the first to successfully sue Bill O’Reilly and Fox News for sexual harassment. He has deep experience in a variety of civil matters, including personal injury, truck and auto accidents, employment discrimination, medical malpractice, and product liability.

 

73 – Pat S. Montes – The Secret Weapon: Your Client’s Story & The Human Experience

In this episode of the Trial Lawyer Nation podcast, Michael sits down with his good friend and “secret weapon,” Pat S. Montes. A practicing lawyer herself, Pat has developed a consulting business where she works with lawyers and their clients to help the clients tell their stories more effectively.  They’ll take an in-depth look at her process for depo and trial prep and why it is so effective (and healing) for clients to tell their whole story.

They begin by looking at Pat’s background and how she got into her consulting business.  A proud Mexican American and one of six siblings, she explains how her upbringing was hugely influential to her and played a substantial role in her success. She goes on to share how she attended the Trial Lawyers College in 2002 where she realized then that she didn’t really know her clients or their voices. She began a long journey of research and self-discovery, attending countless seminars on psychodrama and storytelling. While Pat does not do psychodrama herself, she utilizes many of the same techniques in her practice. She focuses on getting beyond the client’s outer layer to their inner layer, so they can show the jury what’s really going on inside them.

Pat continues by explaining what psychodrama is, which she simply defines as “finding truth in action.” In this process typically used for group psychotherapy, the “star” (the client) acts out scenes and stories from their life while the present group connects with that experience. In relation to the legal practice and our clients, it is a way of being able to connect with other humans and other human experiences and “finding the truth in the story.” Pat uses role reversal, teaches the clients how to “concretize” their feelings, and more to help them translate their feelings into a story for the jury.

They move on to dig into Pat’s process for preparing the lawyer and their client for deposition. Michael begins this section by asking Pat how she discovered that putting something into action helps the client describe it better. She shares how this process gets the client convicted about how they feel and always begins by asking about the effect of the crash on the client’s life. Their immediate answer to this first question reveals a lot about who they are and how they’ve processed this life-changing event. She will then dig deeper into that answer to uncover the “whole truth,” a process which Michael has seen Pat do with his clients many times and strongly believes is incredibly important to the case, cathartic for the client, and vital for the lawyer to fully understand their client. Michael also notes the importance of the client being completely honest with the jury, because “juries have great bullshit detectors” and will punish you if they sense you’re being dishonest.

Pat will then dig into the client’s “before,” something she thinks is crucial for the client to be able to explain vividly to the jury, saying “If the jury can feel the before, then the jury can feel the loss.” She goes on to say that it’s perfectly fine if the client’s “before” was less than perfect. For example, if the client was in a transition phase before the crash, the last thing they needed was a life-altering injury.

Another important part of Pat’s process is teaching the client how to describe their pain and how it makes them feel. This not only helps them explain it vividly to the jury, but it can even uncover injuries and ailments that have been unnoticed by doctors. She then explains how the lawyer should model this to the client by first describing a recent pain they’ve had. She provides her own example of dealing with Sciatica in such detail that listeners are sure to feel the exact sensation of her pain as she says it.

While this process is meant to build trust and understanding between the lawyer and their client, it also serves to prepare the client to bare the burden of proof for the jury. Many clients initially believe they shouldn’t have to prove anything, or that their story speaks for itself. But Pat will constantly remind the client of how what they say looks to a jury. For example, if the client doesn’t remember the date of the accident, that could appear incongruent with their assertation that “the crash was devastating.”

To help the client go into their deposition feeling emboldened or proud, Pat employs a number of insightful techniques. One example she gives even uses the client’s sense of smell to bring them into their “safe place” which has a number of useful applications in the courtroom and in life. This also makes their story more engaging to the jury and helps the lawyer connect with the emotions they felt in that moment.

Pat then notes the importance of the client describing the joy that their past activities brought to their life. For example, when she asks most clients about their past job, they’ll talk about how it brought them respect and made them feel fulfilled. They typically don’t even mention the money! And when we talk about what these things meant to the client’s life, Pat says that’s where we get the anguish and the “struggles.”

This leads Michael to ask her to explain more about “struggles” and what she means by that. Pat provides a common example of a client saying, “I can’t even walk,” when in reality they can. Many lawyers shut off at hearing this because they think the client is overexaggerating or overly complaining. But while they can walk, they are doing so in a lot of pain. She then makes it clear to the client that they shouldn’t diminish anything, but they should not exaggerate anything.

Michael also adds that when clients are overstating, they’re often scared that if they don’t exaggerate, nobody will listen to them. This is why trust between the lawyer and the client is key, and Michael credits Pat for helping build many of his most trusting relationships with clients. He poetically adds, “Even if it’s not the perfect story, the truth is so powerful in the courtroom.” Pat agrees and adds that the less you have, the more you lose. So even if the client’s “before” story is filled with missteps, it’s vital to tell the whole truth to the jury.

They move on to discuss an insightful way to find the best witnesses for the client. Part of this process is the client acting out scenes from their life, which inherently reveals some people in their life that were there for those moments. Usually, they’re not anybody who the client would list unprompted, but end up being the perfect person to attest to the client’s loss.  As Pat puts it, “It’s who knows your character, not who can speak to it.”

While most of this episode has been about Pat’s depo prep process, she and Michael briefly move on to discuss her trial prep process. This involves setting up a mock jury and having everybody rotate positions to be the jury, the defense lawyer, and the client. This prepares the client for the scrutiny of the defense and the jury, giving them the confidence they need to survive the brutal attacks that can happen in the courtroom. They’ll also cover things like eye contact, what a juror needs, practicing a direct, practicing a cross examination, and more. Between this and the depo prep described in this episode, the client will come out prepared, trusting, and sometimes even “healed” from their emotional wounds.

If you’d like to contact Pat Montes about consulting on a case, you can email her at patmontes@monteslaw.com. She is fluent in both English and Spanish. Michael hesitates to say this because he’s nervous about her getting booked up, but in the spirit of truthfulness, he highly recommends working with Pat to develop your clients’ trust and storytelling skills.

This podcast also covers how long this process takes, going to trial without medical bills, why you should ask your clients who influenced them to be the person they are, why the connection you share with your client should be your voir dire question, how acting out a scene can help clients understand the mechanics of their injury, how lawyers can learn more about this process, why the lawyer needs to be present for this to work, why the plaintiff lawyer should NEVER play the defense lawyer in a role play scenario, why this process feels like therapy, and so much more.

 

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