exhibits

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.

51 – Malorie Peacock – Preparing Yourself and Your Case for Trial

In this Trial Lawyer Nation podcast, Michael Cowen talks with his law partner Malorie Peacock to discuss trial prep. Trial prep has been a topic many of our viewers asked to hear more about, so this episode covers everything from file organization, to witness prep, opening and voir dire, visuals, your exhibit list, and the mental toll trial can have on you personally.

To begin, Malorie starts with how important it is to be organized. She begins her organization process 30 days out by putting her exhibits together, printing out the jury charge and witness list, then looking at everything and thinking about the game plan. Her goal from there is to create a 1 or 2 page “order of proof for trial” with exhibits, list of witnesses, and the key points to be made in the trial. Michael agrees and shares a common mistake he sees a lot of lawyers make when they “put every possible piece of paper from the case on their exhibit list.” He suggests lawyers ask themselves: A) is this an exhibit necessary for the jury to see, or B) do I need this to protect the record? Then review how many exhibits you have and what is their order. “If the focus of your case is trying to get the medical bills in your case, then your first exhibit is a summary of all of the medical bills and the medical treatment in the past … so the jury knows when they open the binder ‘this is what we’re focusing on and this is the focus of the case.’” Malorie continues.  Michael also shares how he organizes his complete list of exhibits on his laptop, so if at any point in trial he needs to pull up an exhibit on the fly he can quickly find it.

It takes a lot of time and energy to write a good opening and prepare for voir dire. Which is why Michael and Malorie discuss how changes in your story throughout a case, can affect the opening and voir dire work you do early on. Michael gives an example of this on a case he will try in February with Malorie. Months before trial they worked with a consultant on the case, had a theory on the case, graphics already prepared, then after they developed all of the evidence they decided it wasn’t the best story to tell. Creating a new story and theory may be extremely difficult to do after investing lots of time, money, and energy, however it’s an important part of the trial preparation process.

Which leads to a conversation on storyboarding, creating visuals, and how Sari de la Motte helped Michael rethink his use of the phrase “a simple case” when talking to the jury and using visuals. Malorie brings up just how important it is to tell your witnesses where they should be looking when they answer questions. We as attorneys may think it’s obvious a witness should talk to the jury when answering a question, but in reality it’s normal for you to look at the person you are talking to. “I think people believe that trial lawyers are natural public speakers, but if you’ve ever been to a conference you know that’s not true,” Malorie explains. You might think “it’s only 12 people,” but when your entire case relies on those 12 people, on a really important matter, and your client is watching you, the nerves start to creep in so you have to practice. And practice does not apply simply to speaking, Michael shares his reasoning for adding several solid black slides in his PowerPoint in order to command the attention of the jury when visuals are involved.

Michael then transitions the conversation by expressing his opinions on why every case will have a different order of witnesses. You should determine the order of witnesses based on each case, start strong, think about a witness who can prove the defendant did something wrong, think about when a witness goes on (time of day and when the jury has low energy), and be sure to end with a message of the harm that was caused but a hope of what a verdict can do to help. But emergencies happen and people are late to court, so Malorie reminds you to be flexible.

And the only way you can be flexible is when you are mentally and emotionally prepared for trial. Malorie suggests you spend time with family and decompress the day before trial. Which Michael agrees with because you “spend so much time during trial staying up until 2 am” preparing for that next day, you cannot risk the exhaustion and mental fog and need to be in bed at a decent hour and fully rested.

Being aware of your energy after trial, is equally important whether you win or lose the case. You need to take a day off and recognize it is not possible to be 100% on every day. Or maybe you come in to work and just talk to people in your office. But Michael very bluntly shares “it’s hard because when you’re in trial all the other shit piles up” so when you’re out of trial you feel like you need to play catch up. “It’ll wait a day you need to take care of yourself,” he adds. After each case you should re-evaluate the parts that went great and where you can improve in your next trial, but again it’s important to give yourself space. Michael’s NFL quarterback analogy for this is spot on and reminds attorneys not to value yourself differently after a trial, instead focus on the work you put in.

This podcast on trial prep truly is detailed and also discusses: thinking about your clothes, glasses, how to prep lay witnesses, saving money on images by using Google and Adobe, thinking about the Rules of Evidence, and trying cases with other people. And with Michael and Malorie’s jury trial (mentioned in this episode) resulting in a 7-figure verdict, podcast listeners can expect to hear another episode discussing trial soon!

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