damages

68 – Chris Madeksho – Masked Justice: Part 2

In this Trial Lawyer Nation podcast, Michael sits down with another trail blazing trial lawyer, Chris Madeksho. Chris recently received a $13.9 million jury verdict on a Mesothelioma case tried in person using social distancing and other safety measures. They discuss Chris’s background, the details and challenges of the case he tried, the safety measures taken, and the numerous strategies Chris used to win this fantastic verdict in the age of COVID-19.

Chris specializes in toxic tort and was introduced to the area by his late father, who worked in asbestos installation when he was young and went on to become a trial lawyer. He began his practice in Texas, but later moved his principal office to California due to Texas tort reform. As most great trial lawyers do, he then attended the Trial Lawyers College and began learning from the other great trial lawyers and scholars in the arena, citing Sari de la Motte, Eric Penn, Nick Rowley, Keith Mitnik, and R. Rex Parris.

Michael then asks Chris about the details of the case he tried. Chris’s client was a 68-year old Mesothelioma patient who worked as an asbestos installer from ages 9 to 19. Because of some criminal details in his background, Chris was forced to drop the loss of consortium claim and only request damages in personal injury, BUT was still awarded $13 million in non-economic damages alone.

With this impressive verdict, Michael asks Chris if the defense wanted to try the case or not. Chris responds with a resounding, “No.” In fact, they even opposed Chris’s waiver of jury when he attempted to get a bench trial. So Chris pushed forward, complied with the judge’s orders, and was completely prepared for trial when the time came.

Chris then explains how the jury summons and voir dire process was handled safely. The summonses were sent out via email and included COVID-19 hardship questions. He shares how we know our most dangerous jurors are people who are not afraid of COVID-19, but our second most dangerous jurors are people who are there who don’t want to be. Eliminating people who don’t want to be there was very helpful in that respect.

But, a jury summons by email has its downfalls. The biggest being that the demographics of the jury pool were not representative of the populous. The resulting jury was more affluent, more connected with technology, and more conservative than a typical King County jury would be. But as Chris puts it, “When you have a client who’s going to die if you don’t try the case now, you just do the best you can.”

After summoning the jury pool, voir dire was conducted mostly through Zoom with only two panels attending in person due to security concerns. These in person panelists were separated by a 6-foot spacer and their voir dire took place in a convention center to allow for safe distancing. While Chris believes he connected better with the in-person panelists, the resulting jury ended up being comprised of 14 virtual panelists and only 1 in person panelist.

The pair then move on to discuss Chris’s storytelling strategy. Chris explains how he’s worked extensively with Sari de la Motte and employed many of her Hostage to Hero strategies to craft his opening and closing arguments. He also emphasizes the importance of being “at ease” when speaking to the jury with a mask on. He shares the perfect analogy of being in a dark room where you can only see the other person’s eyes – you’re going to focus heavily on what you can see, so your eyes need to appear honest and relaxed.

Chris’s opening also focused heavily on the conduct of the defendant, a story he told by choosing the “villain” to be a corporate representative who is still alive. He decided to use her as the villain because she is more tangible to the jury than someone who may have done a lot of harm, but isn’t alive to pay for their wrongdoings. Chris and Michael then have a very insightful conversation on if the villain needs to be a person, or if the villain can simply be the organization as a whole – a subject discussed on this podcast in the past.

Michael then asks about how Chris told the damages story at trial, which Chris boiled down to “This is a man who worked his entire childhood. Now that he’s in his final days, he’s living his childhood for the first time.” He then shares how this powerful story was made stronger by getting the defense doctor to share the horrors of Mesothelioma – a useful strategy which every listener needs to hear.

The pair ends the episode with the defense’s shocking (and unsuccessful) closing argument. The defense lawyer basically said, “A lot of people are going to be dying painful deaths in this COVID era. They’re not getting any money.” As he said that, the jury set their tablets down and nobody wrote for the remainder of his argument. Chris agrees to share the transcripts for the full details, but the defense effectively ostracized themselves from the jury at this exact moment. While plaintiff lawyers everywhere have been concerned about this being used successfully against them, Chris’s experience shows it was ineffective.

If you’d like to reach Chris Madeksho, you can email him at cmadeksho@madeksholaw.com or visit his website at www.madeksholaw.com. He’s been kind enough to make himself available to speak with any plaintiff attorney who’s looking to get back in the courtroom and wants to learn from his experience.

This podcast also covers the intricacies of asbestos cases, the importance of putting your family first, working through personal issues with clients, Chris’s courtroom layout, trusting the jury, Chris’s advice for trial lawyers who want to improve, and so much more.

 

Interested in hearing more COVID Era trial stories? Check out our other Masked Justice episodes:

 

Bio:

Chris is licensed to practice law in three states – Texas, California and Washington State, and he has a national reputation for managing asbestos and other toxic torts. He has represented mesothelioma and toxic injury clients in courtrooms from New York to California, and from the Midwest down to Texas.  Chris is a graduate of the nationally-renowned Trial Lawyers College and is a fluent Spanish and French speaker.

In addition to trying cases for victims of cancer and toxic torts, Chris routinely tries cases pro bono for low-income families facing eviction in the Los Angeles area. He participated as trial counsel and adviser to tenants in the largest rent strike in Los Angeles County history. The tenants prevailed in their strike and the landlord eventually dismissed his eviction lawsuits after losing several trials. Helping his community is a passion for Chris.

Outside of work, you’ll find Chris spending time with his family — they especially enjoy gardening, exploring the outdoors, making music, and enjoying good food together. Chris’s dream is to eventually use his time and resources to reforest American ecosystems.

 

53 – Malorie Peacock – The Verdict Is In! Post Trial Discussion

In this Trial Lawyer Nation podcast, Michael Cowen talks with his law partner Malorie Peacock about their recent jury verdict. (In Episode 51 they discussed trial prep and included how they were preparing for an upcoming trial.) This time they will be discussing their $3,420,000 jury verdict, what worked well, how they overcame the challenges of this case, and the power “of a trial to heal.”

Malorie starts by sharing the background on the case. This was a construction site incident where their client was working when a trench collapsed and killed him. OSHA (Occupational Safety and Health Administration) found the company did not provide the required trench protection. (For our listeners outside of Texas, Michael explains that in Texas there is optional workers comp, so the company did not have workers comp at the time and he was able to directly sue the employer.)

At face value, this may seem “like an easy win.” However, there were challenges in the case. The first was the lack of eyewitnesses, which was an obstacle for liability, so the case required the use of witness statements. OSHA keeps their witness statements anonymous, so the ambiguity made it more difficult than using a live person. Because of this Michael and Malorie knew there would be doubt in the minds of the jurors, so Michael had to use Keith Mitnik’s philosophy “doubt is not an out” in order to address the issue of anonymous statements that didn’t answer all of the questions in this incident.

Another challenge on the case, which related to damages, was the client being undocumented and working under a different name. This was “the elephant in the room,” which Michael and Malorie discuss in detail explaining why they chose to share this information in trial (even if most lawyers fight to have this excluded). Michael also points out his absolute shock with the defense alleging this was a sham marriage just for papers and provides insight on how a lack of photos and the appearance of the widow was used to argue this.

After sharing the challenges of the case, the topic shifts to jury selection and how a large portion of their jury panel knew about OSHA. Michael also shares his disappointment to his question “who would like to be on the jury,” but Malorie felt differently and was very impressed with the response. In this trial Michael used Sari de la Motte’s inclusive voir dire, shares how it was received by the jury panel, and the result of it making the defense “be reactive instead of proactive.”

Using visuals to educate the jurors was also important, but this doesn’t happen overnight. They discuss how they planned the visuals, why you need to show them to your experts, and talk about how they can be used in an expert testimony. When you use PowerPoint in trial it forces you to stick to a visual plan, but with poster boards you can decide IF you want to use it AND when. Malorie loved when a juror would ask one of them to “move a little bit over” so they could read a poster board. And Michael loved that the jury felt comfortable enough to ask them to move out of the way. This showed them the jury wanted to understand the information and knew why it was important to see it.

The podcast ends with an emotionally raw and incredibly honest conversation about the power “of a trial to heal.” Malorie shares the moment when the jury put money in the blanks the client “started sobbing uncontrollably” and how powerful it was for both her and their client. Trial is “the last stage of closure” in a death case. It is extremely significant and impactful for your client.

This podcast also covers the interesting questions the jury asked and how those questions were answered, feedback from the two alternate jurors, what you can learn from the defense voir dire, dealing with spacing issues in the courtroom, the surprising link between OSHA and high school theatre sets, the process of building trust with your client, the differences between an injury case and a death case, as well as other trial details you will want to hear.

 

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.”

19 – Malorie Peacock – Trial Tips: Voir Dire, Visuals, and Technology

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Every month, our podcast receives questions from our listeners (which we love by the way, keep them coming) and we take the time to respond to each individually. After 8 months of being on the air, we thought it might be fun and valuable to dedicate an episode to reflect and respond to some of these questions in a new series we’re calling “TLN Table Talk.” In this episode of Trial Lawyer Nation, sought-after trial lawyer and fellow partner at Cowen | Rodriguez | Peacock, Malorie Peacock, flips the script and puts Michael in the “hot seat” for an open discussion to answers questions from our listeners.

Malorie digs right in with a note from a listener that asks – “Knowing that we all need to try more cases to get better, and sometimes you just can’t get to trial for one reason or another, how do you practice for the big moment of going to trial?” Michael reveals how he personally prepares for each trial and his approach toward different types of cases and jurors, along with his thoughts on prepared scripts. He goes on to share outstanding insights about planning and practicing for voir dire, where you don’t know what the jury panel is going to say; and allowing the truth to be acknowledged without letting it throw you off your intended path. Interestingly enough, Michael’s use of pizza and beer to get a deeper understanding of a case, while simple in practice, can also be incredibly useful in the courtroom. Michael also opens up about his rekindled respect for inclusive voir dire with a recent example of a case that turned a $125k offer into a $1.25M verdict, seemingly built in voir dire, before any evidence was ever discussed.

From there, Malorie talks with Michael about the firm’s strategy in trying most cases in pairs and asks him why he believes it’s better. His answer is perhaps not what you might expect, and the discussion shifts toward courtroom perceptions. Michael and Malorie both agree that every perception matters: from how you dress, to how you interact with your staff, to how people see you drive away in the parking lot. The same goes for your client too! Both also agree that understanding visual communication is extremely important as a trial lawyer.

Trial technology seems to be a hot topic for our listeners with all kinds of questions around what types we use, how we utilize them, and the thoughts around why we use them (or not). Michael is quick to point out that we all need to remember the purpose of the tech and the need to tailor the tech to the case, so you don’t look too slick when the other side brings in a manila folder and a legal pad. He does recommend that if the courtroom, and your budget, allows, there are some specific pieces of technology that are far better in his opinion in helping jurors understand pieces of evidence, so long as you are comfortable with it and prepared to proceed when it doesn’t work.

Michael and Malorie close the conversation in talking through strategies on figuring out how much money to ask a jury for and how to actually ask for it, the details of which you’ll have to listen to learn. Trial Lawyer Nation plans to do more “Table Talks” in the future as this podcast has always been about inclusive learning for all in our industry, which includes learning from each other! Please keep submitting your questions, comments, and topic suggestions to podcast@triallawyernation.com; and be sure to like, share, and subscribe to get the latest from the Trial Lawyer Nation podcast!

For more information about Michael Cowen, go here.

For more information about Malorie Peacock, go here.

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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