energy management

65 – Malorie Peacock – Lessons from a Virtual Seminar: Successful Applications in a Courtroom and Online

In this Trial Lawyer Nation podcast, Michael talks with his law partner Malorie Peacock to discuss his recent virtual seminar, Cowen’s Big Rig Boot Camp. They draw parallels between the seminar and the courtroom, including utilizing camera angles through Zoom, energy management, and how to use slides and graphics effectively. Michael also shares a sneak peek inside his upcoming Trial Guides book on trucking law.

The episode begins with a brief overview of what Cowen’s Big Rig Boot Camp looked like in 2020. While it remained a 6-hour trucking seminar, it was done entirely virtually. Michael describes the multitude of tactics he used to keep the audience engaged, which included celebrity appearances and surprising attendees with actor and comedian David Koechner live.

He notes one of the biggest engagement factors was the use of multiple camera angles and a professional AV crew. Through this, he was able to stand for the presentation and use hand gestures naturally. Malorie and Michael draw parallels between this and a Zoom hearing or trial and agree they’d like to find a way to stand while conducting Zoom hearings. Michael goes as far as to say he’d like to set up a Zoom “studio” in the office in the future, and says he would even hire a professional AV crew again if he had a very big hearing or a virtual trial.

Malorie comments on how surprised she was that utilizing multiple camera angles made such a big difference in the presentation engagement. Michael agrees, and explains how he first heard of this concept from Mark Lanier who utilizes a 3-camera setup for his depositions. When showing depo footage in trial, Lanier will only show the same camera angle for 7 seconds. (This is how they do it in the news media to keep the audience engaged.) If virtual trials move forward, these concepts will all need to be considered to effectively produce a dynamic virtual experience which holds the jurors’ attention.

Malorie then asks Michael a question which must be on everyone’s mind, how did you keep your energy up for 6 ½ straight hours of speaking to a camera without a live audience? Michael notes how similar this was to presenting in a courtroom – you can be absolutely exhausted, but as soon as you step in the room, “you’re on.” He also explains how you can’t be high energy the entire time without coming off frantic and stressing your audience out. The key is to have a range of highs and lows, which serves to conserve your energy and make the highs more impactful.

This type of energy management has taken Michael years to master, and he shares an insightful story from a trial 15 years ago where he learned an important lesson – even if you can’t say everything you want to, you need to slow down and make it about the listener.

Michael goes on to explain his mindset change through the teachings of Carl Bettinger in the book “Twelve Heroes, One Voice.” He used to think it was his job to win the case, but now he knows that’s the jury’s job. And by incorporating this mindset, it’s abundantly clear that the jury deeply understanding the case is much more important than you saying everything you want to say. Malorie then describes her own journey through this, when she was told she speaks very loudly when she’s telling a story she’s passionate about. She realized this comes off as abrasive when the jury isn’t there with her yet and has worked to consciously change this.

Another strategy Michael used to manage his energy during the presentation was the strategic use of PowerPoint slides. He incorporated a variety of both “busy” slides filled with information and simple slides with just a topic or phrase. While presenting the information dense slides, he could be lower energy. But when there was a simple slide, he knew he had to be high energy to carry that portion of the presentation.

This leads Michael and Malorie to discuss the larger applicability of these tactics in the courtroom. When presenting in trial, Michael utilizes completely blank slides in his PowerPoints when he wants the jury to be focused on him. While they both agree more visuals will be necessary in a virtual trial, they recognize the need to incorporate film professionals to make those visuals effective.

On the topic of visuals, they shift to the role of graphics in the courtroom. Michael and Malorie agree that often a simpler graphic is much more effective than an intricate, expensive graphic from a courtroom exhibit company. Michael sums this up perfectly by stating, “If we have to explain the graphic, then we’re losing them.” He’s enjoyed working with his firm’s own graphic artist, and also recommends looking at Upwork and hiring an artist on a contract basis. Malorie adds you can even create some very effective graphics yourself in PowerPoint without spending a dime. This all boils down to the fact that you can’t win a complex case, and while intricate and expensive graphics certainly have their place in the courtroom, they are often overused and frankly a waste of money.

Malorie then shifts the conversation to a discussion of Michael’s upcoming book on trucking law, which Michael previewed during the virtual seminar. One of the major aspects of his research focused on electronic logs for truck drivers, and how they cheat on them. Michael explains how even though truck drivers are allowed to work up to 70 hours a week already, they spend so much time on unpaid activities (deliveries, loading, inspections, etc) they need to cheat in order to make a decent living. Trucking companies have been recommended to pay by the hour or a salary, but they almost always choose to pay their drivers by the mile because it’s better for the company economically.

Michael then describes numerous ways these drivers cheat their logs, including driving on “personal conveyance” time, creating a “phantom driver,” and more which are so intricate they need to be heard to be believed.

Michael and Malorie wrap up the episode with some terrifying facts. Michael spent some time researching drug testing protocols for truck drivers, where he was very disappointed by the current system. Through a plethora of methods, drivers successfully cheat on urine tests and stay on the road. One study indicated as many as 310,000 truck drivers on the road today would fail a hair follicle drug test if given one, to which Malorie replies, “What if that number was commercial airline pilots? People don’t think that way, but they should. These things are huge.”

This podcast also covers Sari de la Motte’s teachings, courtroom models and exhibits, how to catch a truck driver who cheated on their electronic logs, raising the minimum insurance limits for trucking companies, and so much more.

If you’d like to attend Cowen’s Big Rig Boot Camp in 2021 in person or virtually, visit www.BigRigBootCamp.com for live updates.

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.

50 – Sari de la Motte – Voir Dire & Opening: Forming The Best Jury Possible

In this Trial Lawyer Nation podcast, Michael Cowen invites Sari de la Motte back to the show. Sari was one of our top episodes in 2019, so to celebrate 50 episodes and over 100,000 downloads we invited her to be our first returning guest. This show will cover voir dire, opening, the concept of group communication, and how all of these concepts help you form the best jury for your case.

To start things off, Sari shares that her book “From Hostage to Hero: Captivate the Jury by Setting Them Free” is now available for purchase. She reveals how her desire to help trial lawyers understand why jurors “don’t want to be there” (summoned for jury duty), how to deal with this, and then lead them from their “hostageness – their inability to say no to this process” to choosing to be a part of the jury, was how the idea for the book began. Michael adds how initially this reminded him of Carl Bettinger’s book “Twelve Heroes, One Voice” in that both Carl and Sari believe it is important to help your jury become the hero in the case. But after working with Sari, Michael sees how she focuses more on the hostage aspect, shows you how to release the jury panel from this, works to help you understand how important nonverbal communication can be, and gives practical tips to use in the courtroom.

Jumping right in Michael introduces the highly debated topic of “inclusive voir dire” versus “exclusionary voir dire.” He reveals how in the past he has used exclusionary voir dire to find his bad jurors, but understanding Sari’s thoughts on the “hostage mentality” has made him rethink his voir dire technique. Putting it bluntly Sari gives the example of “when you come in with the mindset of ‘who here is out to kill me and how do I kill them first’ that is like a poison and a disease” which then spreads and has your potential jurors wanting to find a way to get out of being selected for your jury.  A different mindset where you find the people who want to help you can change this and Sari’s analogy involving hiring a new paralegal and sorting through resumes helps put everything into perspective.

Michael pivots the conversation into how important mindset is for trial lawyers. Sari truly believes “how you’re thinking, affects how you act, which affects your results” and explains how the CTFAR model can help. Michael gives the example of his mindset before his upcoming jury trial and how he is reminding himself “jurors are good people and want to do the right thing and help my client.” This example leads to Sari sharing just how useful the mindset of “the jurors love me” was for a client of hers and how the success of this led to a $10 million dollar jury verdict. And if you are thinking “this is bullshit” Sari explains the communication science behind it and why it works.

Moving from mindset back to voir dire, Sari and Michael discuss how frustrated potential jurors are in the jury selection process. When jurors are not sure why they are there and what is happening it’s critical to get to the point and say what they are in court to do. The next step is to then think about voir dire as a group process and not an individual process, because you are there to create a group and you want a group to reach a verdict in your case not 12 individuals. Michael adds how equally important it is to think about the information you share with the group, the order in which you share it, and how you shape the conversation. The order in which you share your information is crucial and your timing is too, which leads to Sari explaining how jurors will immediately think whatever principle or fact (good or bad) you bring up first is the most important part of your case.

Michael wraps up this episode with a discussion on managing energy. He shares his experiences as a trial lawyer by describing his energy level as a young attorney as being extremely high energy at all times, but then when he tried to slow down he came across as “low energy and passionless,” and now he has learned about “managing energy” to keep the jury engaged and never bored. “Ringing the bell” is an engaging way for attorneys to keep the jury on the edge of their seat and is described as a tool for great storytelling in your opening. However, these techniques are not natural and as Michael points out you have to practice before you do this in front of the jury successfully. Practice should not be confused with scripting an opening, so Sari reminds listeners this is for “the ease and the delivery of information not rehearsing it word for word.”

The podcast is filled with additional great advice ranging from the importance of videotaping yourself, why it is imperative to rehearse saying the dollar amount you want a jury to award, thinking about the principles in your case, how journaling can help you in your mindset, using devils advocate questions, thinking about voir dire and how it connects jurors to you in your opening, and so much more. It’s truly a show any attorney will want to listen to more than once.

 

BACKGROUND ON SARI DE LA MOTTE

Sari de la Motte is a nationally recognized coach, speaker, and trial consultant. She has trained extensively with an internationally recognized authority in nonverbal communication and is an expert in nonverbal intelligence.

Sari specializes in helping trial attorneys communicate with jurors.

Sari speaks to audiences of a few dozen people to audiences of over a thousand. A sought-after keynote speaker, Sari is often asked to headline conferences across the United States.

Sari consults with trial attorneys all over the country, assisting with trial strategy, voir dire and opening statement. She conducts mock trials in her studio in Portland, Oregon and assists with jury selection on-site.

Sari has spoken for, and works with, several members of the Inner Circle of Advocates, an invitation-only group consisting of the top 100 trial attorneys in the United States. She’s has been a featured columnist for Oregon Trial Lawyer’s Magazine, Sidebar, and has also written for Washington State Association of Justice, Oregon Criminal Defense Attorney, and other legal publications. She provides CLEs for various state association of justices around the country.  Because of her unique ability to help attorneys communicate their real selves, she has been dubbed “The Attorney Whisperer.”

Sari is regularly interviewed on TV, radio, and in print, and has appeared in the Atlantic, Huffington Post, The Oregonian, Willamette Week and other publications. Her book, From Hostage to Hero: Captivate the Jury by Setting Them Free was released by Trial Guides in November, 2019.

For more information on Sari de la Motte you can visit http://www.saridlm.com/

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