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Episode

60 – Matthew Pearson – A New Era: A Look Inside the First Zoom Jury Trial

By Michael Cowen — 3 years ago

In this Trial Lawyer Nation podcast, Michael is joined by Matthew Pearson, the plaintiff’s lawyer in the highly publicized first Zoom jury trial in the country. They discuss the trial in detail including how Matthew’s case was selected, how a summary jury trial works, the jury selection process, case presentation, and what (if anything) Matthew would do differently.

The episode begins with a discussion of Matthew’s background and how he became involved in the nation’s first Zoom jury trial. He specializes in first party insurance cases in construction defect from the property owner’s side. Michael notes this is different from most of his other guests, but Matthew identifies some parallels in what he does with other plaintiff’s lawyers.

The case he tried by Zoom involves a commercial building hit by a hailstorm in Collin County, Texas where the insurance company did not want to pay out the claim. As part of Collin County’s ADR process, the parties must hold a summary jury trial before they are allowed a full jury trial. The goal is for a settlement in mediation after the summary jury trial. Matthew’s summary jury trial was originally set for July, but he was asked (or “volun-told”) to move it forward to May 18th and do it virtually. He was a little nervous, but excited overall for the opportunity.

Michael and Matthew then briefly discuss how a summary jury trial is nonbinding and has far less rules than a full jury trial. Each side has an hour and a half to put on their case, then the jury deliberates and comes back with a non-binding verdict. Both sides can then ask the jury questions about the verdict and their deliberation. Matthew finds this approach to be a great opportunity for feedback and to identify areas to improve should the case go to full trial.

Diving right into the jury selection process, Matthew describes how typically in a summary jury trial the mediator will select the jury and only dismiss jurors “on the fringe” of either side. When the court noticed the publicity surrounding this Zoom trial, they decided to give each side 15 minutes to do voir dire (on the Friday evening before the Monday trial no less). Michael asks Matthew how a Zoom jury would do things like raise their hands when asked a group question, a process Matthew describes as “The Brady Bunch on steroids.”

The conversation continues with a look at case presentation. Michael asks if Matthew presented his case differently than he would in an in-person trial. Matthew says he tried to go about it like a regular trial as much as possible. He typically uses PowerPoint for his opening, which worked perfectly for the virtual presentation. He utilized Trial Director software to talk the client though evidence and instructed his expert to use PowerPoint to present key documents as well. The expert also used a digital pen to circle key points and blew up pictures as he presented. Michael notes he typically tries to avoid using too much PowerPoint during trial but agrees it would be necessary when presenting virtually.

The importance of building strong group dynamics in a jury has been discussed in the podcast often. Is it possible to create group bonds when everybody is sitting in their own homes? Matthew notes it wasn’t vital for a one-day non-binding trial but agrees this would be difficult for a week-long trial. He describes how the jurors ate lunch by themselves and when the day is over, they just turn off their computers without interacting with the rest of the jury (it would be improper for them to communicate via phone once the day is over).

Whether a strong group or not, the jury did deliberate for 30 minutes and reached a unanimous verdict. Matthew was pleasantly surprised by the fact they found his expert to be credible, even over Zoom. Leading both to agree on the huge cost savings down the line if trial lawyers no longer needed to pay for experts to travel to a trial.

In Matthew’s case, the damages were all economic. Looking at it from a personal injury perspective, Michael worries about jurors’ ability to assess pain in a virtual trial. He gives an example of people who are more moved by a 30-minute TV show than they are by most trials and sees an opportunity for a new group of consultants to emerge from this. An interesting comparison to Saturday Night Live is mentioned that you have to tune in and hear in order to fully appreciate.

Now for the big question: Would Matthew do a Zoom trial if the result was binding? He’s not so sure if he would. While this experience went very smoothly, it was only a one-day experiment. All the jurors were able to find a quiet place without interruptions and they had no technical issues. If this was a full-blown trial it would go on for much longer. He’s also not confident the results could be replicated for such a large endeavor. And has doubts a jury could go through so much evidence and make a decision based off the evidence virtually. Michael and Matthew discuss possible solutions to this but agree this would be a huge concern.

They close off the episode with Michael asking, “Would you do anything differently?” Matthew replies he would present the same way, with an opening, putting on witnesses, and a modified closing. But he would change his use of technology. He urges listeners to have at least two screens set up and to leave the jury on one screen for the entirety of the trial to monitor their reactions. He would also have his paralegal join to help control documents, like he would in a regular trial. Lastly, they both agree while they are very hesitant to hold a binding trial via Zoom, they may be forced to if this goes into 2021.

This podcast also covers jury engagement, body language, whether Zoom trials can provide a representative jury pool due to the technology involved, the importance of trial consultants, how to share lengthy exhibits with jurors, Matthew’s appearance in Sari de la Motte’s Hostage to Hero Facebook group, and more.

If you’d like to reach Matthew to discuss his virtual trial experience or discuss a case with him, visit his law firm’s website at pearsonlegalpc.com or email him at mpearson@pearsonlegalpc.com.

 

Bio

Matthew Pearson is the founder of Pearson Legal PC based out of San Antonio, Texas.  He has over 25 years of experience litigating matters in federal and state courts throughout Texas and the United States.  He has extensive experience in cases involving insurance law, construction defects, business disputes and employment law, and has earned a reputation for successfully representing his clients in the courtroom.  Mr. Pearson was recognized by Verdict Search for receiving the largest insurance verdict in Texas two years in a row. Verdict Search also recognized Mr. Pearson for receiving the fifth largest contract dispute verdict in Texas and the second largest employment verdict in Texas.

Mr. Pearson is Board Certified in Civil Trial Law and Personal Injury Trial Law by the Texas Board of Legal Specialization.  Mr. Pearson also writes articles and frequently speaks on insurance and construction law issues.

 

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Episode

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

By Michael Cowen — 3 years ago

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.

 

 

 

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Episode

39 – Sari de la Motte – What we Tell Jurors Without Saying a Word

By Michael Cowen — 4 years ago

In this Trial Lawyer Nation podcast, Michael Cowen sits down with presentation coach, speaker, and trial consultant, Sari de la Motte, for a conversation on nonverbal communication. With two advanced degrees in music, and having started out initially teaching teachers how to get better results in their classrooms, Sari has transitioned her skills to working 100% with trial attorneys on how to present and work with juries.

Sari began her journey while attending school for her Master’s Degree in Music, when her professor told her she needed to go to a training on nonverbal communication to help her become a better teacher. She attended with the mindset that she was going to learn about how to read people’s nonverbal cues and make up stories about what they are communicating. Little did she realize the focus would be on herself and how she communicated nonverbally, and how she could increase her presence and charisma. And she was hooked! The trainer was Michael Grinder, a master of, and world renown expert in, the power of influence — the science of non-verbal communication, non-verbal leadership, group dynamics, advanced relationship building skills and presentation skills. She was so intrigued, she looked him up, and followed him around the country, paying her own expenses along the way for upwards of 9 months to observe and take notes on what he was presenting. After which she pivoted completely from music to nonverbal communication.

Both music and nonverbal communication are the two universal languages. She explains, you don’t need training in music to enjoy it and the same goes for nonverbal communication in order to understand it, i.e., you don’t need to be trained to know when your spouse is upset. But, if you want to perform music or you want to be systematic in how you communicate nonverbally, then you certainly need to become trained in those areas.

In the beginning, Sari started training teachers in schools on how to communicate using nonverbal techniques until the recession hit and she realized schools had less and less money to use. That’s when she adapted her trainings for the corporate world. Little did she know that when the Oregonian did a story on her, she would receive a call from a lawyer asking her to come help pick a jury the next week. She also wasn’t sure on how she would be helping but once she was in the courtroom, she again was hooked and knew it was a great fit for her.

Michael wonders how Sari learned how to take what she knew about nonverbal communication and apply it to what lawyers do. Sari shares a story about how the original lawyer wanted her to come to the courtroom, watch the jury pool’s body language and tell him who to keep on and who to kick off. Ironically, she found that as much as she kept watching the jury, to which there is no scientific evidence to back up the ability to read body language as its own language to make judgements about people, her attention kept coming back to the lawyer himself. She soon realized, the biggest opportunity to help this lawyer was to in fact, help him with his own nonverbal communication in how he was interacting with the jury. Thankfully he was open to her feedback and wanted to know everything he could from her. Sari goes on to point out that all the nonverbal skills she teaches, whether teaching teachers, the corporate world, or to lawyers, are all the same skills. It’s just the context that changes. And once she learned the context lawyers operate in, how to apply those skills, and met a lawyer who was able to look at himself instead of focusing on what the jury was doing, she truly fell in love with the work trial lawyers do. Michael points out the irony of “how many times we’re doing something with our hands, a facial expression, other body language, or even our tone of voice, and we don’t even know it. And we’re giving off a message that is the opposite of the words we’re saying.” Sari not only agrees, but also points to research that shows “if there is a mismatch between what you are saying and what you’re communicating nonverbally, the listener will go with the nonverbal message every single time.” She continues by pointing out those awkward times lawyers are videotaped, watch it back, and are absolutely horrified by what they see; not so much in regards to the superficial things like hair being out of place or our weight, but rather because we have no idea about all the weird things we’re doing nonverbally.

Early on, at the beginning of her career, Sari was approached to speak to The Inner Circle, a group of the top 100 plaintiff attorneys in the United States, and statistically notes after 15 years, she has found that it is always the best lawyers that show up on her doorstep. Michael and Sari discuss “winning in the courtroom” and how some overstate its importance and talk through what they see as a better way to define winning. Furthermore, Sari points to what is in your circle of concern versus your circle of influence, a mindset which stems from The 7 Habits of Highly Successful People by Stephen Covey, and further proves her point about the definition of winning.

Talking about Sari’s podcast From Hostage to Hero (also the name of her upcoming book), Michael is curious about where the name came from. She recalls needing to learn the context of how to apply her skills to the courtroom and finding the best way to do so being to read all the books lawyers were reading, attending CLEs, watching DVDs, etc. And she found that after helping to pick several hundreds of juries and having read all kinds materials, there was something missing from the conversations 
 the idea of jurors being hostages. No one was really talking about the elephant in the room, where jurors don’t even want to be there in the first place, and they’re forced to do it anyway. So, she set out to fix this “communication dilemma” and understand how we get jurors to want to participate and realizing the hero role they truly play in the end. In other words, we’re asking jurors to take action for some person who they don’t know, with something they think doesn’t benefit themselves at all. “We’re asking them to be heroes, but when they first come into the courtroom,” Sari reveals, “they’re hostages.”

Sari discusses the levels of engagement lawyers go through with jurors on their journey through a trial: creating a safe environment; engaging them with you and the material, AKA voir dire; commitment, and be willing to listen to your opening statements; and finally, taking action at the end. Whereas, lawyers have a tendency to jump all the way to the end before systematically moving them through the other levels of the interaction. Or, as Sari describes it “that’s like going to our coffee date, talking for two minutes, and then getting down on one knee and asking the person to marry us.”  Sari continues to discuss each level in detail, including: understanding the 3 components of any message (content, delivery, reception) and using your breathing as a way to create safety. Then she discusses listening to understand vs. listening to talk and how to elevate people’s status by listening, along with the different levels of listening. And lastly, empowering jurors to make a decision and take action.

Listeners might think a podcast episode about nonverbal communication could potentially leave people feeling like they’re missing out on what’s to see, but Michael’s conversation with Sari couldn’t be more engaging and relatable with their descriptiveness. The episode rounds out with several other topics such as: understanding the S.C.A.R.F. model (Status, Certainty, Autonomy, Relatedness, Fairness) and how it relates to juries; how to turn a jury from an unformed group to a functioning faction; how to introduce jurors to each other using just your eyes; issues vs. relationships; the two buckets EVERY communication fits into and how knowing which one you are presenting can give you permission from a juror; things that lawyers do that hurt their cases; and so much more. This is absolutely an episode every lawyer who speaks or moves in the courtroom needs to listen to.

 

BACKGROUND

Sari de la Motte is a nationally recognized presentation 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 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 also works with high-profile speakers in her Portland office, helping them to hone their messaging and fine-tune their nonverbal delivery.

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 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 CLE’s 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.”

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

 

RESOURCES

The 7 Habits of Highly Effective People by Stephen Covey