depo prep

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.

 

70 – Malorie Peacock – The Method: Our 9-Step Process for Evaluating & Working Up A Case

In this Trial Lawyer Nation podcast, Michael Cowen sits down with his law partner Malorie Peacock for an exciting preview of his upcoming Trial Guides book on trucking law. They’ll cover Michael’s 9-step method for case evaluation and detail each of those steps, so you can start applying them to your own case evaluation process.

They jump right into this episode with Step 1- initial triage. Michael explains how he derived the term from battlefield medicine, where patients are triaged based on the severity of their injuries and care is prioritized for the patients who need it most. He explains how trial lawyers only have a finite amount of resources, and the decision to put work into a case or not will effect more than just that case. It also takes those resources away from other cases and your personal life.

Michael then shares an example of how he used to work on automotive product liability cases, but his firm has since moved away from them. He has recently rejected five of these cases, even though they were all worthy cases someone will make money from. He chose to do this because these cases don’t fit in with his current docket, and there are other lawyers who will take them and excel at them because they do suit their dockets. Michael even sends his referral attorney to these other lawyers when the referral attorney brings him a case that he knows they will excel on – something that used to terrify him, but he’s since learned it builds an even stronger relationship between him and the referral attorney.

Before moving on to the next step, Michael clarifies that “Initial Triage” is NOT making a final decision on whether or not to accept the case. This step is simply deciding whether you want to look further into the case. In fact, Malorie clarifies that a lawsuit is typically not even filed until about Step 7 in this process.

Step 2 of “The Method” is to gather all the initially available information on the case. This information varies dramatically depending on the type of case it is, but the main goal of this step is to determine a general idea of the liability stories and issues with the case. Michael also explains the importance throughout this process of continually evaluating the case and asking, “Knowing what I know today, is this a case I would take?” If the answer is ever no, consider dropping the case. They conclude this step by discussing a recent example Malorie had of a case where the client was a great person and genuinely deserving, but the facts they discovered during this process made it a case that did not work on her docket.

Step 3 is to identify and analyze all potential immediate causes. Michael explains this as a brainstorming exercise where you record every possible immediate cause of the crash, even the causes that seem unlikely but are possible (for example, a bee in the vehicle). You then divide these potential causes into columns of “winners” and “losers.” Winners are causes which, if proven, help you win the case. Losers are causes which, if proven, mean you lose the case (or need to neutralize them).

After identifying the winners and losers in the case, you move on to Step 4 – conducting a root cause analysis. Michael explains how this concept was first developed by Mr. Toyota, the founder of Toyota Motor Company. Mr. Toyota decided that instead of fixing things when they went wrong, he would try to find the reason these things were going wrong by asking the “5 Why’s.”

To apply this to a case, you take the “winners” discussed in Step 3 and keep asking “Why?” until you find your ultimate root cause. Michael then shares an example from a rear-end case where he took the winner of “the truck driver rear-ended my client” and found “the company did not take the time or effort to train the driver” to be the root cause of the crash. He continues this process for every “winner” and develops multiple theories before he decides which theory he is going to use.

Malorie then re-emphasizes the fact that in an ideal world, you will not have filed the lawsuit yet at this point. They both agree there are times you need to file the lawsuit early to avoid any destroying of evidence, but if possible you should wait.

They move on to Step 5 – drafting the jury instructions. Michael shares how he used to feel doing this so early on was silly, but has since realized it really helps him design the case because he knows what he needs to prove. Malorie adds that doing this also better prepares you for depositions because you know what questions you need to be asking. She also emphasizes to not only look at liability instructions but also damage instructions. This all boils down to, “What do you have to prove?”

The next step in “The Method” is Step 6 – finding rules and anchors. These are authoritative sources for the rules, answering the question “says who?” Michael explains that this is one of the reasons he loves doing trucking cases, because there are so many rules and publications to use as anchors. The more sources that say a rule the better, because defendants are left with two choices: to say they know the rule and broke it, or to say they disagree with all those sources and have their own rule. Michael and Malorie then discuss numerous examples from different types of cases, showing that this method can be used on much more than trucking cases.

Malorie then asks Michael to clarify what an “anchor” is for those who don’t know. He explains an anchor as what you are “anchoring” your rules to. This is an authoritative source or publication of the rule, such as the CDL Manual, a driving company’s textbook, a store’s rules, an OSHA rule, and more. He then concludes this section by explaining how to arm your expert with these anchors to get the most out of their testimony.

Step 7 is to formulate the discovery plan. This is also where you draft the complaint or petition and plead what you need to get the discovery. For example, if you believe the root cause is negligent training, you need information to prove they have a negligent training system. Then, you formulate the discovery plan based on that. Michael cautions strongly against asking another lawyer for their interrogatories before drafting your own. You need to formulate your own based on your theories to prove what you need to prove. You can then use a form to double check and make sure you didn’t miss anything. Michael and Malorie then agree on a fantastic practice tip which makes this process a lot easier and discuss the importance of brainstorming with colleagues.

As discussed earlier, now is the ideal time to file the lawsuit. Then, step 8 is to continually re-evaluate the case. Malorie highlights the need to do this throughout each of the steps as well and to keep notes on what you’ve done so far to avoid repeating any unnecessary work. Michael then explains how as new facts, research, depositions, and discovery emerges, your initial root cause might not be the best strategy anymore and that’s okay. Malorie echoes this statement and adds that too many lawyers are afraid to ask for what they really want in discovery, and more lawyers should be specific and ask for specific documents referenced in other documents.

The above steps were mostly completed before you have all of the information about the case, which Michael cites to further emphasize the point that re-evaluation is key. He then shares some techniques he’s developed at his firm to ensure this gets done by all of his lawyers.

Michael and Malorie conclude the episode with the final step in “The Method”- test the case. Michael explains how the method of which you test the case varies depending on the value of it and lists a number of unconventional methods to do this on a budget. He then lists the advantages and disadvantages of other more conventional methods, including in-person focus groups and online studies like John Campbell’s Empirical Jury. While no method is 100% accurate, they can give you a good idea of where you stand.

This podcast also covers why you should file a FOIA request immediately, how implementing “vulnerability-based trust” by Patrick Lencioni has helped his firm, how to disprove or neutralize “losers” in a case, how Michael applies parts of this method to his employees, why you should research rules BEFORE hiring an expert, why you need to be constantly re-evaluating your case, and so much more.

57 – Sonia Rodriguez – The Digital Frontier: Technology, Roadblocks & Creative Solutions

In this Trial Lawyer Nation podcast, Michael sits down with his law partner Sonia Rodriguez. They discuss pushing cases during COVID-19, educating the defense and clients on Zoom, the increased need for technology in law firms, finding creative solutions, the effect of the pandemic on jury attitudes, and strategies to safely return to the office.

The discussion begins on the topic of pushing cases and overcoming defense delay tactics during COVID-19. Sonia emphasizes the need to continue to move cases, even if you’re met with objections from the defense, saying “The wheels of justice don’t come to a complete halt.” Sonia suggests offering a clear, transparent proposal for technology to the defense prior to depositions. Fellow Cowen Rodriguez Peacock attorney Jacob Leibowitz has created guides for Zoom for Depositions and Zoom for Mediations which have been helpful in easing uncertainty surrounding this new technology. Michael has also found success in offering practice sessions to the defense counsel, noting that this works well when people are acting in good faith.

Unfortunately, not all defense attorneys are acting in good faith with their objections to this technology and will try to drag the case out. In these situations, Sonia encourages attorneys to file a Motion to Compel Deposition. She has found success in this because courts in Texas have been utilizing the technology themselves. This makes it hard for defense attorneys to suggest depositions by Zoom aren’t appropriate when the hearing may very likely be held by Zoom. Sonia and Michael agree that it’s in every firm’s best interest to keep their cases moving during COVID-19 and to find creative solutions to problems which may arise.

The conversation shifts to a discussion of preparing clients for Zoom depositions. Sonia insists the process isn’t much different, other than a loss of “relationship feel” between the client and the attorney during deposition prep. The important factor in this is ensuring you create a comfort level for your client that makes them feel prepared.

Sonia and Michael agree the biggest roadblock they’ve faced regarding client preparation is a lack of available technology for the client. Many clients do not have a laptop, Wi-Fi, or a room where they can sit privately and quietly for a 3-4-hour deposition. Their firm has mitigated this issue by sending tablets to clients who need them and emphasizing technology training during deposition prep. They note that this strategy does not always work, and some depositions will inevitably need to be delayed until we can meet in person again. The underlying goal is to keep 95% of your cases moving.

Michael and Sonia move the conversation to the overall increased level of understanding regarding video conferencing technology like Zoom. Sonia describes her experience with sharing exhibits through Zoom, and her trial and error of doing so. She’s noticed how advanced the knowledge of this technology is for many court reporters and mediators and has learned through their advice as well. She then shares a story of when she served a witness with a Zoom deposition subpoena. She expected a lengthy process of explaining the technology to the witness, who shockingly replied that she was well-versed in Zoom through her children’s virtual school courses. Michael notes that he doesn’t know how enforceable a Zoom deposition subpoena would be, but again emphasizes the goal to move 95% of cases and save the rest for when we return to normal. Sonia echoes this by explaining the duty we have to our clients to move cases and represent them earnestly. While we cannot guarantee their trial date will go through, we can guarantee we are continuing to work on their case.

Michael makes the point that we all only have a given amount of energy to spend in the day. While it’s easy to get caught up in things outside of your control, it’s crucial to not let this suck up your energy. He emphasizes the importance of spending your energy on what you can control right now- moving your cases. Sonia agrees and adds that as trial lawyers, we are wired to be creative and tackle the unexpected in our cases and in the courtroom. She shares a brilliant example of this comparing today’s landscape with an elmo projector.

There has been much speculation around how COVID-19 will affect jurors’ perceptions in the long run. In Sonia’s opinion, this will depend on the economic situation once juries come back. If people have been out of work and cannot afford to be there because of their economic situation, this will not be good for the plaintiff’s side. She believes if the economy can stabilize, jurors may feel a heightened sense of civic duty and comradery around rallying on a jury. Michael has hesitations about trying a case where the jurors feel endangered by being present, but has a positive outlook on the long term effects, stating “Americans have an incredibly short memory.” He notes the worries of juror perception after events like 9/11 and the 2008 financial collapse, which had no long-term negative effect.

Sonia and Michael conclude with a discussion of how and when firms will begin to gather in a physical office space again. Sonia says our top priority needs to be to keep our clients and our families safe. Michael shares his hesitation to open too quickly by saying, “We sue companies for putting profits above people” and we should hold ourselves to this same standard.

This podcast also covers ethical concerns with virtual depositions, when to provide hard copies of exhibits in virtual depositions, bench trials via Zoom, overcoming technical issues, and much more.

21 – Sonia Rodriguez – Winning (or Losing) a Case in Deposition

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With overwhelmingly positive feedback from our listeners, TLN Table Talk podcast is back again! This time featuring fellow partner at Cowen | Rodriguez | Peacock, Sonia Rodriguez, for a discussion mainly focused on how to win (or lose) a case in a deposition.

Michael is quick to note that many cases tend to settle before going to trial, making depositions an integral part of the process. Oftentimes it comes down to knowing the documents better than the defense attorneys while also knowing the right documents to order, which in many cases the defense may not have. It can also come down to a witness’s ability to know and articulate the truth in a deposition, which is frequently a direct reflection on those who have helped to prepare the witness (defense or plaintiff).

So how do Michael and Sonia prepare for depositions? Sonia explains her strategy of always looking back on the jury charge to see what exactly she is trying to gain from a witness, scour the defense record from production to find nuggets of useful information, dig into the footnotes, fine print, and back of pages to find what others might miss. She has also found social media to be useful to learn as much as you can on the person being deposed including who their friends and other contacts are, companies they’ve worked for, and digging in to find info on company manuals or other ways to authenticate them as an authority coming from a witness. Michael, on the other hand, points out the importance of networking and collaborating with other plaintiff’s lawyers as “we’re good at getting things and sharing information” such as prior admissions, reports, or testimony. There’s likely nothing more embarrassing for a witness, especially paid ones than to be cross-examined with contradictory testimony they gave in the past. Sonia, who recently had a deposition with a defense doctor, shares how his past testimony was the exact opposite of what he was testifying to in her case, which obviously played to her favor.

When it comes to the right length of a deposition, Sonia shares her wish to someday be able to take a short depo, but currently has her attention to detail and thoroughness to “blame” for the style of her depositions, one which sometimes drives opposing counsel mad. She tends to feel unsatisfied leaving a depo if she hasn’t covered a lot of ground, knowing the jury will likely not hear most of it. She has also found that many times when she’s taking a deposition, she’s not just doing a trial depo of a witness, but also trying to prepare in advance for a summary judgment response and how they can also be helpful to lay the groundwork for what she might need from another witness. In contrast, Michael prides himself on short but thorough depositions stating how it really depends on the witness and subject matter. He also admits the danger of taking shorter depositions in relation to “having a beginner’s mind” vs. the “curse of knowledge” where you might already know something, the defense already knows it, and the defense witness knows it, but the jury does not, and could lead to talking over the jury with jargon they might not understand. Both agree 100% no matter how you approach a deposition, you need to be actively engaged in listening to the responses and not just running down questions on an outline where you would likely miss the truly important parts of what the witness is saying, or not saying, which could make your case.

The conversation shifts to a lively debate heard in many firms of weighing the idea of “going for the kill” in the deposition vs. saving things for trial when you know the witness will be there in person. With different experiences from both Sonia and Michael prior to them partnering, each brings a unique perspective to the table from their mentors as well as from their personal experiences. Of course, they agree these tactics both have their place, but Michael also brings up the point how oftentimes with expert witnesses, if they don’t know something at a deposition, they tend to come to trial more prepared with a response.

Michael and Sonia jam pack the second half of their discussion with everything from preparing their own clients for deposition, videotaping depositions, deposing the other side’s experts, guiding medical experts to slow down their testimony while not losing the jury with industry terminology, and exceptions to all of the above.

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!

Find out more about Michael Cowen here.

Find out more about Sonia Rodriguez here.

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