defense lawyer

89 – Michael M. Guerra – From Guts to Glory

In this episode of the Trial Lawyer Nation podcast, Michael Cowen sits down with McAllen, TX trial attorney, Michael M. Guerra, to discuss his multiple 7 and 8-figure verdicts & settlements, recent “monster” settlement in a “legally tough case,” and advice on how to achieve verdicts like these in your cases.

Cowen and Guerra begin the episode by discussing Guerra’s background and how he got into doing plaintiff’s work. Guerra begins by explaining that he had an Allstate defense firm job waiting for him after law school and was “quickly terminated,” citing that his heart was not in it. Seeing as he was married right before starting law school, had a baby on the way and a mortgage to pay, he quickly took a job as a court-appointed lawyer; a position leading him to over 100 jury verdicts.

In 1995, Guerra was appointed Guardian Ad Litem in a death case in Plainview, TX, where he would meet Mikal Watts. This meeting would ultimately lead to Guerra opening Watts’s McAllen office, where we would work alongside Watts before going off on his own.

“Pushing trials and then just going in there and watching good defense lawyers do what they did. I learned a lot [from them].” – Michael M. Guerra

Guerra then goes into a harrowing story of a case he took on just after going off on his own; a case involving the death of his friend’s father, a high-ranking Sergeant Major in the Army who was killed after his RV exploded when he lit his morning cigarette. The explosion was due to a gas leak in the RV trailer.

Guerra began the case by enlisting the help of several experts; namely Mike Schultz (Illinois) to look at the trailer and Tim Dunn (Georgia) to investigate the gas system. Shortly after beginning the case, a call from a Sheriff’s deputy would change everything for Mike. “He [said], ‘Hey, Guerra, I’ve got to tell you. When we got into the trailer…we found the [gas] burner in the ON position.’” Understanding that the Sergeant Major had most likely left the stove on by accident, Mike’s original thought of a defect or leak causing the explosion was called into question. He couldn’t believe it.

Continuing past this unfortunate revelation, Mike began researching the trailer and oven manufacturers and came upon an interesting, and ultimately crucial, piece of information: the company sold the exact same trailer in Australia with one key difference, their stoves contained a “flame failure device.” This device, which automatically shuts off the gas once the flame goes out, was absent from American models of this trailer; a safety feature that would’ve cost the company only 99 cents per burner to install.

That case consumed me for 10 months, [as] we got it set for trial.” – Michael M. Guerra

The case was settled a week into trial for an amazing result and, more importantly, saw the trailer manufacturer agree to include the “flame failure device” safety feature in all future models.

The two then move on to discussing Guerra’s latest case out of the Port of Brownsville; a case involving “ship breaking,” the process of dismantling a ship to reuse parts or extract materials, a flash fire, and 2 men who suffered significant burns (one who was burned on over 80% of his body and passed away).

After discussing details of the case including the ship owner filing a Limitation of Liability Act, getting removed to federal court, and then returning to state court, the two begin to discuss Guerra’s invaluable 2-day, 36-person mock trial, which gave him the confidence to ask for huge numbers ($250-$300 million) in voir dire; a task that, Guerra confessed, scared him.

“It took a lot, for me personally, to [ask] for that kind of money; knowing people would throw hand grenades at me.” – Michael M. Guerra

When everything was said and done, calmed and confident from his meditations, prayers, and with some last-minute motivation from a Nick Rowley CD in his car on the morning of trial, Guerra couldn’t wait to get started. The jury was selected on Friday, presenting evidence was scheduled to begin on Monday, yet they would not have a chance to begin, as the case was settled on Saturday evening.

Cowen then shifts the conversation to what Guerra did to pressure the defense in the case. Guerra responds, “most jurisdictions from coast to coast have laws that create a duty for insurance carriers to use good faith when settling cases. In Texas, we call it the Stower’s Doctrine, which says that if an insurance company refuses to settle a case, that reasonably should have been settled within policy limits, the insurer can sue that carrier and they can be on the hook for the entire amount of verdict even above their policy limits.”

“It’s an everchanging, very dynamic area of law, in my opinion” – Michael M. Guerra

Guerra closes the discussion by talking about how he hired several different policy lawyers, including coverage lawyers specializing in reading insurance contracts, to help draft a demand to the carrier. “That really paid off in the end,” he says as he reflects on the impact of hiring those lawyers, including a quick note on the defense commenting on how expertly done the demands had been.

This podcast episode also covers the importance of working with and learning from great lawyers, advice for handling “monster” cases, why you should give your cell phone number to everyone, and much more.

Guest Bio

Michael M. Guerra was born and raised in McAllen, Texas. He received a Bachelor of Science degree from Texas A&M University in College Station and a law degree from Texas Southern University in Houston. While at A&M, he was a member of the Corps of Cadets. In law school, Mr. Guerra was an American Jurisprudence Award recipient in Constitutional law. Mr. Guerra has been licensed to practice law since 1993. He is certified by the Texas Board of Legal Specialization in Personal Injury Trial Law and has served as a member of the Exam Commission. Mr. Guerra began his career by successfully trying dozens of criminal trials to jury verdict. He transitioned his practice to representing plaintiffs in civil litigation, including representing hundreds of landowners in an aquifer contamination case and representing the Plaintiffs in America’s first Ford Explorer – Firestone tire case to reach a jury. Since then, his efforts have been instrumental in compelling safety improvements in product manufacturing and premises management. Over his almost 30 year career, Mr. Guerra has generated hundreds of millions of dollars in recoveries for his deserving clients. His efforts have achieved astonishing results, including a $33 million injury verdict which was the record verdict in Texas for a case of its type, as well as multiple settlements of more than $20 million.

Mr. Guerra has been featured as a speaker in numerous civil litigation seminars and his articles have been featured in national publications. His cases have been profiled by, or he has been quoted by numerous major news organizations such as the New York Times, the Los Angeles Times, CNN, and Fox News.

Mr. Guerra is a fellow in the International Academy of Trial Lawyers and a member of the American Board of Trial Advocates (ABOTA,) as well as the Attorney Information Exchange Group (AIEG). He has been named Texas Monthly – Texas Super Lawyer in multiple and consecutive years and he was named to The National Trial Lawyers – Top 100 Trial lawyers. Mr. Guerra is on the Advisory Board of the Texas Agriculture Lifetime Leadership (TALL) program and is on the Advisory Board of the McAllen Pregnancy Center. He is also a member of the President’s Board of Visitors for the Cadet Corps at Texas A&M University. Mr. Guerra was selected as the 2018 Ronald D. Secrest Outstanding Trial Lawyer Award recipient by The Texas Bar Foundation. The award recognizes a trial lawyer who, in his or her practice, has demonstrated high ethical and moral standards and has demonstrated exceptional professional conduct, thus enhancing the image of the trial lawyer.

Michael Guerra is married to Mindy Guerra and has three children.

 

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

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

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

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

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

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

 

BACKGROUND

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

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

 

LEGAL BACKGROUND

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

 

PUBLICATIONS AND LECTURES

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