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64 – Mark Mandell – The Case Framing Mindset

In this Trial Lawyer Nation podcast, Michael is joined by legendary trial lawyer and author Mark Mandell. Mark wrote the must-read books “Case Framing” and “Advanced Case Framing.” Michael and Mark take a detailed look inside these books, including what case framing is, how to apply case framing, what “I just can’t get over” issues are, using “echoes” in trial, Mark’s trial closing strategy, and the story of the hardest case Mark ever tried.

Michael begins the episode by asking Mark to describe what case framing is. Mark starts at the beginning and explains how when he first started practicing, plaintiff lawyers were basically in “the dark ages.” Mark began looking for new ways to try cases almost immediately, but found each method he tried had holes in it. Then about 15 years ago, he started to study decision science and put together the basis of case framing.

Mark insists case framing is not just a method. As another great lawyer stated and Mark has since adopted, “It’s more than a model. It’s a mindset.” Mark explains how case framing has become a part of him, and influences everything he does both pre-trial and in trial. When he was first asked to describe case framing in one sentence, Mark struggled initially but then settled on, “Every single thing you present at trial needs to be framed and sequenced in a way that focuses the attention of the jurors on the points YOU most want to make.” He goes on to describe how a case is decided by what it’s focused on, so why would you want to focus on anything else? As Mark astutely summarizes, “A case frame is the heart and soul of the case. It gives the case meaning.”

Mark continues with explaining how a case frame needs to have two qualities. It needs to relate to the facts of the case, and it needs to have universal application in our society. He shares the detailed example of how he first came to understand this from the OJ Simpson criminal trial. Mark lists off the issues of the case and explains how they aren’t case frames. After exhausting these, Mark explains how the case frame was actually wrongful accusation and elaborates on why that is such a powerful case frame to use because of both its power and universal applicability.

Michael then asks Mark to explain the next level of case framing, which Mark named “I just can’t get over” issues. Simply put, it’s an issue that if a jury can’t get over, it’s going to guide their verdict. These issues can come from an almost endless amount of places, but they need to embody that statement.

As a follow up Michael asks what every listener must be thinking, what are some examples of defense “I can’t get over” issues and what can plaintiff lawyers do to overcome them? Mark gives a laundry list of examples and directs listeners to his book “Advanced Case Framing” where he details 16 different ways to overcome them. He briefly explains how to overcome these issues by refuting them or by “substituting them” or “overcoming them” with more powerful issues.

Another aspect of case framing Mark discusses in his books is “echoes.” Marks insists this is actually one of the hardest concepts to understand. An echo needs to either support or defend an issue, or Mark says you shouldn’t use it. It can be a document, idea, exhibit, or many other things that cause a good issue to reverberate throughout the jury’s head throughout trial. Mark explains how people need echoes to fully understand something because nobody can pay attention indefinitely. He then provides several examples of echoes he used when trying a DRAM shop case which he says is the hardest case he’s ever tried. Through this example, he highlights the importance of ignoring chronology and starting the case at the #1 “good for you” issue in the case.

The conversation shifts to a discussion of Mark’s different closing strategies. The first of those is that he never discloses his overall case frame until closing. He has numerous reasons for doing this, including that you need to leave something new to tell the jury in closing – and since the jury always goes into closing arguments undecided on something, what could be better to present to them than your overall case frame? His other reasons include rebuttal rules and that your case frame can change during trial, based on how it unfolds.

Mark is also known for using questions in his closing arguments, which Michael asks Mark to explain. Mark offers a surprisingly simple answer – people don’t like being told what to do. Mark continues by explaining that when you tell the jury what to do, YOU become the issue. When jurors come up with the answer themselves, “They own that answer now.”  He believes this causes them to go into deliberation much stronger. Michael adds that trusting the jury is both the most liberating and terrifying thing, to which Mark agrees. But, it makes trial a lot more fun AND leads to better results.

Michael and Mark conclude the episode by taking a detailed look at the DRAM shop case which Mark insists is the most difficult case he’s ever tried. Mark walks listeners through the shocking details of the case and explains how he applied his methods throughout. After being told by countless lawyers to drop the case, Mark walked away with a $21.5 million verdict after interest. This story truly needs to be heard to be appreciated.

This podcast also covers Mark’s advice on one of Michael’s more challenging cases, using anchors in trial, secondary case frames, beginning every witness examination with an “I can’t get over” issue, and so much more.

If you’d like to learn more from Mark Mandell, visit his website and purchase his books “Case Framing” and “Advanced Case Framing” here.

 

Guest Bio:

Mark Mandell practices law at Mandell, Boisclair & Mandell, Ltd. in Providence, Rhode Island. He specializes in catastrophic personal injury, wrongful death, medical negligence, dram shop and products liability cases.  He is triple Board Certified, nationally.  His certifications are in the areas of Civil Trials, Civil Pretrial and Medical Negligence Litigation.  Mr. Mandell is currently listed in “The Best Lawyers in America.” He is a member of the Inner Circle of Advocates.  Mr. Mandell is a past president of American Association for Justice, Rhode Island Trial Lawyers Association, and The Rhode Island Bar Association.  He is the immediate past chair of the Board of Directors of the Roger Williams University School of Law. He has more million dollar verdicts and verdicts of over $10,000,000 than any other lawyer in Rhode Island history.  Mark has written two books “Case Framing” and “Advanced Case Framing”.  He has also published 24 articles in national and state trial law journals on a variety of subjects and has lectured in 48 states.

 

59 – Malorie Peacock – Discover Your “Why”: Committing to Organizational Health

In this Trial Lawyer Nation podcast, Michael sits down with his law partner Malorie Peacock. They discuss their recent “deep dive” 2-day management retreat, the organizational health of your law firm, Zoom jury trials, and implications of the shut down on future business.

The episode begins with a review of their firm’s recent 2-day management retreat, which was a “deep dive” into their firm’s core values, focus, and goals based off the book “The Advantage: Why Organizational Health Trumps Everything Else in Business” by Patrick Lencioni. The retreat starts off with a seemingly simple question: Why does our law firm exist? Michael admits he was worried everyone would think the idea was “hokey,” but Malorie insists she was surprised at how complex the question really was. Michael, Malorie, and the rest of their management team spent significant time reflecting on this and decided their firm’s purpose is to “provide a ‘Special Forces’ level of representation to people who are hurt.” Michael recognizes this as an extremely high aspirational standard (which is why he hesitated at first to share) and sees this as their goal for the firm.

After deciding the firm’s purpose, their team was tasked with choosing the firm’s core values. Both Michael and Malorie emphasize the importance of choosing values you will embrace and commit to. As an example, Michael highlights the common PI lawyer core value of safety. He asks, “What do you do when you get a 5 million dollar offer without a safety change, or 1 million dollars with a safety change?” If the firm’s core value is safety, they should take the lower offer. Malorie echoes this sentiment and adds that PI lawyers face a lot of backlash from society, so they tend to overcompensate by expressing an unrealistic emphasis on safety over getting justice for their clients. The key is choosing values that truly represent your firm and its goals.

On the note of goal setting, Michael explains the importance of choosing one large goal and sticking to it. Citing Gary W. Keller’s book “The One Thing,” Michael reflects on past experiences of having lots of great ideas, but something would always come up and they would be forgotten. By choosing the one area which adds the most “bang” to your law firm, you can truly focus on that area and strive towards your goal every day. This strategy requires buy-in and personal work from every attorney at your firm, but when achieved is very effective.

Michael and Malorie then reflect on the implications of states re-opening and how it affects their ability to conduct legal work remotely. Malorie has already had opposing counsel insist on doing things in person again, but worries about what she’ll do down the line if the court forces her high-risk client to have an in-person deposition. Michael shares these concerns, stating “eventually I’ll be ordered to do something I’m not comfortable doing.”

As they switch to the topic of Zoom jury trials, Michael is quick to share his hesitance towards the idea. His concerns include a lack of nonverbal communication, distractions, a loss of group dynamics, and the inability to obtain a representative jury pool by excluding citizens without adequate internet or access to childcare. He does add that online focus groups have shown the numbers aren’t very different from in-person jury trials, but he would like to see more research before committing to one. Malorie also notes an interesting difference between an in-person trial and a virtual trial. In a virtual trial you have to sit in the same place for the entirety of the case, which means you can’t have witnesses act things out, do demonstrations, or have multiple ways of showing people information. This makes it more difficult to keep the attention of the jury. Michael and Malorie end this discussion by agreeing if this goes on for years, they will eventually have to adapt. And Michael ends by agreeing to try a jury trial case via Zoom with a podcast fan, an offer you’ll have to tune in to hear all of the details.

They finish off this episode with a conversation about future business implications because of this shut down. Malorie has noticed more people on the roads recently and only anticipates a 3-4 month lull in new cases, but believes it will pick back up quickly. Michael agrees and adds that people are getting stir crazy, and driving more recklessly than before, stating “gear up and get ready.” With that being said, Michael and Malorie encourage scrutiny when deciding what cases to invest in right now. Malorie believes small insurance companies may be less willing to pay out claims, and Michael is being very cautious with cases involving a risk retention group or a self-insured company. Many are currently teetering on insolvency and may not be able to pay out claims.

This podcast also covers answering legal questions for friends, “Zoom fatigue,” time management, return-to-office prep, and 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!

32 – Jim Adler – Building a Firm on Reputation

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In this Trial Lawyer Nation podcast, Michael Cowen sits down with prominent Texas attorney, Jim Adler, AKA “The Texas Hammer,” for a discussion on building a law practice on a solid reputation.

Running an efficient law firm that has allowed him the ability to spend quality time with his large family (4 kids and 9 grandkids) didn’t happen overnight. Having started his practice doing everything by himself, learning to delegate and understanding the business and marketing side of running a firm are two areas where Adler has focused on the most to build the successful law firm he has today.

Adler recalls back in “those days,” when he was starting out, thinking that it would have been ridiculous to believe he would ever make $100,000. When he started, he was struggling to support his family and manage to do everything himself. He initially started advertising in the “green sheets” and got a little business. But it was when he started using a company called “Lawyers Marketing Services,” that he saw more success. He was told to “try it, you’ll like it,” and went into TV advertising which quickly had his phone ringing off the hook. Of course, it didn’t come without its fair share of social pressures not to advertise to the public back then, due to the stigma that other attorneys attached to the tactic. Adler has also found himself bearing the brunt of parodies on TV, even being referenced on Beavis & Butthead as “Joe Adler.” To which Michael points out, “you know you’ve made it when a national tv show is referencing you.”

Now going on his 5th generation of TV viewers, The Texas Hammer has found himself up against finding the attention of younger people who don’t want to pay for TV, AKA “cord cutters.” These are the individuals who are watching entertainment on their Slingbox, Roku, PlayStation, Netflix, and YouTube, which makes it especially hard to reach them. People don’t have “TV” anymore, so you have to find them elsewhere, which is why Adler has a saying in his firm, “if we’re not changing, we’re dying.” It is this mindset and desire to continue to learn and adapt (more on that later in the episode), which continues to keep his name and brand so strong.

The conversation then turns to when Adler became partners with a well-known U.S. District Judge, Robert O’Connor, who wanted to get back into practice. Judge O’Connor knew that Adler was wasting his time doing divorces, bankruptcy, and real estate and this was “the age of the specialization.” Taking that advice and focusing on personal injury cases has grown his firm to a staggering 30 attorneys and roughly 300 staff! Michael and Adler both agree that having so many people working for the firm is a lot of moving parts. But as Michael points out, it can be “a lot harder to run a business than to be a lawyer.”

Adler goes on to describe the way his firm has created a departmentalized system to take care of clients every step of the way. His intake department has specialists that only take new client calls and are separated from an operator who accepts all calls. His case management department with case managers who are assigned to each case and are supervised by a lawyer essentially works like a mini law practice within his law firm. The packaging department with specialists in preparing settlements and gathering all the hospital records, are all just the tip of the iceberg when you look at the organization he’s built.

In fact, evolution has been long and everchanging with the times. Adler recalls how all of these departments work well, but he received feedback that clients hated being passed around. Since then he has utilized his case managers to tee up the transition better and give the client a clear sense of what each step in their case is going to be. He goes on to describe their closing department, as well as their administrative departments and accounting departments, a strong litigation department, and an internet department, which ties into the firm’s marketing efforts. Over time, the evolution from having one secretary and an assistant, to set up all the different departments, developed through the use of statistics and formulas. From assessing how many cases a case manager could handle, to how many calls can an intake person handle, to how many cases can a lawyer try and/or settle, all of his operations were fine-tuned through statistical analysis. Adler describes himself to be a big believer in customer service and tries to promote their “service marketing” agenda to everyone throughout the firm in order to provide “over the top service” to their clients. He points out that if a lawyer does a good job for a client, he or she will likely be referred, 7 new people. Whereas the “bad-mouthers” are likely to tell 100 people if they didn’t have a good experience, regardless of the end result of their case.

Michael becomes curious about whether Adler had to figure these things out on his own or if he brought in any kind of consultants. Adler shares how he has read tons of books on business, such as The CEO Nextdoor by Elena L. Botelho and Kim R. Powell, Good to Great by Jim Collins, FOCUS by Daniel Goleman, as well as many other business publications like The Wallstreet Journal and Forbes Magazine. Thinking back to law school, Adler also recalls that they teach you how to be a good lawyer, but they don’t teach you how to become a good business owner. Adler has learned a lot from talking to people who were trying to sell him something, talking to other lawyers about how they do things, and going to TTLA meetings. Michael points out his own evolution from the mentality of being “a great lawyer and people should just line up at our firm’s door” to opening his mind to see other successful practices like Adler’s, and how they keep clients happy and run their firm in general. He also notes that although he doesn’t do TV advertising, he still spends hundreds of thousands of dollars on marketing to his referral partners.

Both Adler and Michael reflect on the importance of treating people with respect and dignity, even down to the importance of returning a phone call. The 45 seconds you take to let someone know you received their call and you are looking into their question or concern, can have a dramatic impact on the attorney/client relationship, even if just to tell them that you are in trial and will get back to them as soon as possible. Adler also goes a step further to ask for referrals when a case concludes and to remind their clients of all the different cases they handle.

The conversation certainly would have been remiss if Michael hadn’t brought up the obvious question – How did you come up with the name “The Texas Hammer?” Adler explains that it was Hayden Bramleigh, from the lawyer marketing service, who first suggested to him that he needed a trademark, similar to how every big brand has a trademark. Moreover, “The Texas Hammer” went through some evolution of its own through various focus groups and seeing how people around the country responded to the name being associated with other lawyers in different states. Admittedly, although some people might not know Adler’s name, they can still associate him with “The Texas Hammer” which is still an effective marketing tactic for him. Adler also points out that it’s been a long road, fighting battles with others who don’t agree with legal advertising, which oddly enough, he points out, tend to be other lawyers and not the end consumer.

The conversation with Adler goes on to talk about his strategies on developing lawyers in his firm, the tests they give to new lawyers joining their firm, transparency in reporting to the firm on settlements and new cases, professional training they’ve developed, the resources they use for case management, getting over the fear of public speaking, and so much more. The organization that Adler has built over the years is nothing less than astounding and we are so appreciative of the time he spent with us on this episode.

“Please note the TLN19 discount code mentioned in this show has now expired.”

 

BACKGROUND ON JIM ADLER

Famously known as “The Texas Hammer,” injury lawyer Jim Adler has been hammering for victims for over 40 years, championing “the little guy” against big corporations and big insurance companies which would deny their legal rights.

That mission is why he launched his own law firm in 1973 with a one-man office in downtown Houston. Today, Jim Adler & Associates has offices in Houston’s Uptown/Galleria area, Channelview, Dallas, and San Antonio, with two dozen attorneys and more than 250 legal support staff. They share Jim Adler’s mission of helping injured Texans get the money they deserve from those who were at fault.

 

Family Man, Giving Back

You may know Jim Adler only from his media appearances and tough-talking TV ads. But he’s more than that. He’s also a family man who loves children and devotes much time and his firm’s resources to children’s charity causes.

In 2009, former Houston Mayor Bill White appointed Jim Adler to the Board of Directors of the Joint City/County Commission on Children, recognizing his lifelong devotion to helping children.

“I believe we all should give back to our communities,” said Adler, a Dallas native who speaks fluent Spanish. “I believe in helping people and doing good works.”

In fact, unlike his fierce TV image, Jim Adler is “a people person. I enjoy being around people from all walks of life. I love the joy of life – of just being alive.”

He’s also even more active than his busy legal work suggests.

“I love to sweat,” says the avid tennis player, snow skier, jogger and golfer. “I love sports of all kinds, and I work out five or six days a week — 30 minutes of cardio and 30 minutes of weightlifting. I’m also really big on nutrition and watching what I eat.”

Boosted by this commitment to health, he has no plans to retire — even now that son Bill Adler has joined the firm as an attorney.

 

Son at His Side

“Having my son at my side at the firm is the best thing that’s ever happened to me,” Jim Adler says. “He’ll ensure that all the work I’ve put in over the years and the family’s tradition of serving underdogs will continue.”

That family includes Jim Adler’s wife of 38 years, their four children and their five grandchildren.

Bill Adler was raised in Houston, but Jim Adler was raised in Dallas. He went to Austin to earn his undergraduate degree from the University of Texas, followed by his law degree from the UT School of Law.

He then served in the U.S. Army and U.S. Navy and was appointed a judge for the Office of Civilian Health and Medical Programs United Services (OCHAMPUS), adjudicating health and medical disputes for Army, Navy, Air Force, and Marine personnel. He then launched his law practice in Houston, home of his principal office today.

Jim Adler was admitted to practice law by the Supreme Court of Texas and is licensed to practice in the U.S. Courts of Appeal for the Fifth Circuit and U.S. District Courts for the Southern, Eastern, Northern and Western Districts of Texas.

He is a member of the State Bar of Texas, Houston Bar Association, Texas Bar Foundation, Dallas Trial Lawyers Association, Dallas Bar Association, American Bar Association, and American Trial Lawyers Association.

He’s also a director of the Texas Trial Lawyers Association and the Houston Trial Lawyers Association.

As a passionate advocate for injury victims, Jim Adler has handled lawsuits involving auto accidents, trucking accidents, offshore accidents, Jones Act cases, refinery accidents, construction injuries, burn injuries, brain injuries, on-the-job accidents, slip-and-fall cases, railroad accidents, electrical accidents and many other types of personal injury.

Getting payments for victims can be a battle. But Jim Adler became a lawyer to fight those battles.

“I always had a desire to help underdogs, the little guy, against big corporations and big insurance companies, and to level the playing field for accident victims,” he says.

 

Charitable Works

Jim Adler’s good works also include many charitable causes. He’s contributed to the American Cancer Society, Armed Forces Relief Trust, Association for Community Television, Alzheimer’s Disease & Related Disorders, Arthritis Foundation, American Heart Association, American Health Assistance Foundation, Special Olympics, Child Advocates of Fort Bend County, The Center for Hearing & Speech, Covenant House, Easter Seals Society and Galena Park Choir Boosters.

Still more of his causes include the Habitat for Humanity, Juvenile Diabetes Research Foundation, Federation of Greater Houston, Guild for the Blind, Leukemia & Lymphoma Society, March of Dimes, MD Anderson Cancer Center, Multiple Sclerosis Society, Primera Rosa De Saron, Susan G. Komen Breast Cancer Foundation, St. Jude Children’s Research Hospital, Texas Bar Foundation, Texas Children’s Hospital, US Olympic Committee, University of Texas Law School Foundation and UTMB Burn Care Research.

“I wish there were more hours in the day,” says Jim Adler. “I always want to do more.”

“Basically I believe in doing good works. Seeing families whose child was injured by an 18-wheeler or a defective drug puts me in a fighting mode. My good works then are about helping them recover financially. Those good works are my life’s mission.”

Thus, after decades of fighting for justice, Jim Adler is still on the case, helping those who need it the most. As thousands of injured Texans have learned when he fought for their legal rights, there’s only one “Texas Hammer.”

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