human behavior

107 – Stefano Portigliatti – The Power of the Individual: Insights into Juror Psychology, Communication & Understanding

In this episode of the Trial Lawyer Nation podcast, Michael sits down with Stefano Portigliatti, a trial lawyer out of Jacksonville, Florida, who recently secured a $14.6 million verdict on a tough trucking case. Michael and Stefano discuss Stefano’s background, how he connects with jurors individually, and all the details of his recent verdict.

To begin the episode, Michael asks Stefano about his background and how he got to where he is today. Stefano shares how his family is Italian, and how he grew up in Brazil. He had dropped out of college, but after some life experiences “woke him up to his priorities,” he decided to go stay with his brother in Tampa, Florida, and finish school. The pair finished college, then decided to attend law school together, where Stefano was bit by the “personal injury bug” and found his calling.

His family runs multiple businesses out of Orlando, including a Human Behavioral Research Group. It was in this lab where Stefano studied human behavior, motivation, personality, and social studies through neurosciences. Before law school, he applied this to executive coaching for businesses, but quickly realized the implications on jury communication and connection.

Stefano then elaborates on his personality assessment tool, which goes to the root of what we care about and how we communicate. Some jurors care about the rules being broken, others empathize with the social consequences, and others want to plainly see the numbers.

After Michael asks him what he does to motivate different people, Stefano explains the two-axis that separate people into four different quadrants. The first axis is their level of assertiveness, defined as those who need to influence the environment in accordance with what they want, versus those who look to the environment for cues. The other axis is the individual’s responsiveness, broken into task/objective-oriented versus people-oriented. When you place both continuums together, you get four quadrants from which 70% of human behavior can be attributed.

Michael digs further into how Stefano assesses these tendencies in jury selection. He shares how he doesn’t ask jurors explicitly but instead looks for cues based on their answers to questions, such as their occupation and eagerness to participate in the process. Once he has this information, he tailors his presentation of the case to each individual juror and what they value.

“Communication is not what you say. It’s what people understand.” – Stefano Portigliatti

This technique requires the lawyer to “talk to the juror, NOT the jury.” Stefano argues that this is so important because, at the end of the day, they are all individuals who are forming their own opinions until they step into the deliberation room. He then shares some enlightening examples from his recent trucking case verdict, including questioning a defense witness on his engineering qualifications when he had an engineering student on the jury, the client discussing his relationship with God after the incident when most of the jury were devout Christians, and even questioning the defense’s tow truck driver before relying on a truck driver on the jury to use “common sense” in deliberations.

Michael then asks Stefano to give some background on what happened in this case. Stefano explains how his client was an 18-wheeler driver who experienced air loss in his chassis while on the road during a bout of rain. He was unable to get off the roadway and eventually came to a hill, where he got stuck. He put out triangles on the road, but only put them out to about 160 feet instead of the required 200 feet. He gets back in his cab to avoid the rain when another semi comes over the hill, swerves, and jackknifes into the client’s semi. A witness later testified that the defendant driver was looking down the entire time.

Stefano’s client was flung from the sleeper cab into the front of the cab, where he hit his head and was left with a bad neck injury. They later discovered he also suffered a brain injury in the crash.

Listening to this story, Michael notices some clear issues Stefano had to face, including blocking the lane of traffic on the roadway and that he should have inspected the vehicle before departing. But shockingly, the jury found Stefano’s client 0% liable for the wreck. Of course, Michael asks how Stefano was able to do this. In short, the answer is putting in a LOT of work.

Stefano began to work up this case by consulting with experts, including one on CMV safety, to figure out what happens when a chassis loses air. Then, he held a total of five focus groups just on liability. At each focus group, he was asked questions that he didn’t have answers to. By the end, he learned so much from each of these groups that he went from 70% liability on his client in the first focus group to just 20% liability in the last focus group. The key was accepting and owning the things his client didn’t do right while focusing on the inattention of the defendant driver.

Another interesting aspect of this case was that the client’s brain injury wasn’t diagnosed for over a year after the crash. Luckily for Stefano, while the diagnosis took a while, his client’s symptoms were well documented from the time of the crash. He experienced intense dizziness, vertigo, depression, nightmares, and issues with directions. When they did a specialized MRI on him, they found that he did in fact have a brain injury, which explained all these symptoms.

Stefano then explains how the human story added credibility to the medical story. He had lots of “before and after” witnesses, including family, friends, and co-workers. Each of these witnesses had a distinct reason for being there, which Stefano made sure to emphasize since the order of the trial was much different than he had anticipated.

Stefano’s client received $4.6 million for economic damages and a massive $10 million for human loss, so Michael’s next question is about how he was able to get so much for human loss. Stefano shares his highly effective “damages pie chart,” which he finds particularly useful in cases with high medical expenses in the past and future. He divided the pie into 6 slices, with only one of those being past and future medical bills. He then fills the rest of the slices with examples from the case, such as physical impairment and loss of quality of life. This chart resonated so well with the jury that they asked for it during deliberations.

To wrap up the episode, Stefano highlights two points that he thinks are the most significant of this trial; flexibility and credibility. Trials will never to exactly how you planned them, so being able to adapt and roll with the punches is key. He also put a lot of effort into credibility, opting to go for an understated opening statement to ensure he didn’t overstate by event 1%. This built trust with the jury, resulting in this incredible verdict for Stefano’s client.

This podcast episode also covers getting over the fear of the jury, detailed stories of how Stefano connected with each juror individually, how Stefano adapted to the defense’s delay of the trial, and so much more.

 

Guest Bio:

Stefano D. Portigliatti is a trial attorney specializing in commercial motor vehicle cases at Coker Law, PA in Jacksonville, FL.  He has represented clients in over a hundred trucking cases and helped obtain millions of dollars in verdicts and settlements. Stefano is among the first 20 attorneys in the United States to pass a rigorous exam on trucking laws and an intensive background check to prove that his practice is dedicated to litigating trucking crash cases. He was also one of the youngest attorneys to be included among Super Lawyer’s Rising Stars and the National Trial Lawyers’ Top 40 Under 40.

Stefano often presents on topics related to trial and trucking litigation. He is on the Board of Regents of the Academy of Truck Accident Attorneys. He is also the founder of truck.law™, which assists other plaintiffs’ attorneys handling trucking cases with forms, resources, and seminars available at www.truck.law.

Stefano was born in Sao Paulo, Brazil, to a hard-working Italian family. Before becoming a lawyer, he was engaged in diverse business ventures across multiple continents. Stefano is the Vice President of SOAR Global Institute – a laboratory that researches human behavior and development. Stefano speaks internationally in the areas of emotional intelligence, innovation, and human development. He is a certified master coach and trainer and has developed several courses and systems that apply psychology and behavioral analytics to management and trial strategies.

Stefano is a musician and likes to sail, golf, cook and travel with his wife, Brittany, and their two sons, Luca and Leonardo.

 

42 – Cynthia Rando – Human Factors: How Space Station Precision Leads to Courtroom Results

In this Trial Lawyer Nation podcast, Michael Cowen sits down with Cynthia Rando, a Certified Human Factors Professional who also operates as an expert witness on human factors in the courtroom.

Knowing she always wanted to run her own business, Cynthia started her career at NASA Johnson Space Center in Houston, Texas as a human factors engineer, working with the space station program where some of her work is still flying in space, assisting the crew it their missions. Michael notes the space station as an environment where the margin of error is small, and the consequence of error is huge to which Cynthia describes them as one of the most hostile environments you could ever have to design for and in the most stressful safety type environment.

Digging right in, Michael asks the question which is likely to be on most listeners minds – what exactly is “human factors?” Cynthia describes human factors as an extremely broad science that deals with how people interact and perceive their environment, the things they use in that environment, and also how they interact in work with other people. She goes on to boil it down to two things:  1. helping people optimize what they do well, whether it’s through design or understanding of human behavior, and also your physical body shape and limitations and, 2. mitigate what we don’t do well to avoid risk of injury or human error. For example, she describes driving perception, where a lot of people have issues on the roadway taking turns, so it is considered a very high cognitive load task. The human factors look at the process and procedure that the person took in taking a turn, the visibility of oncoming traffic, what that person or reasonable driver could have been able to see, and if all conditions were perfect, did they take the right steps.

Michael and Cynthia continue to explore examples and how they determine these scenarios retrospectively. It’s interesting to hear how her firm, Sophic Synergistics, doesn’t do accident reconstruction, but rather often works extremely close with the accident reconstructionist on the case. Cynthia describes her process of going out to conduct a site visit in order to look at the environment, the design of the roadway, where the vehicles were, and the vantage points for all the drivers or entities involved, including pedestrians, which establishes what everybody could see from their vantage point in a reasonable fashion. From there, she’s looking for the best line of facts which line up in corroboration with each other and which make the most sense in terms of probability based on what you know as human factors. Examples of this would be whether there is a question of reaction time, perception, performance, or if speed was involved or not. She describes it as dissecting the actions, behaviors, as well as the cognitive processes, to know what was possible or what wasn’t, based off the actual physical environment. In other words, it leads to understanding what the facts are telling you, and where they align and where they don’t.

To understand more on how this might work in other types of cases, Cynthia describes a product liability case which involved a consumer product marketed to adults but ended up being used by children. She describes the product’s design as having been so attractive to little children that the children ended up becoming the primary users despite all the company’s efforts to say this product isn’t for kids. She goes on to describe how labeling is also hard to use as a strong enough warning because we, as human beings, are bad at seeing risk and how it pertains to us, making it very difficult to convince people via labeling. A great example Michael brings up of how those risks impact our behaviors is wearing your seatbelt, because there have always been consequence of dying, looming among us all if we don’t wear our seatbelt, but it wasn’t until laws were passed which extended the consequence to something as simple as getting a $200 ticket became associated with it, sparking more people to relate to it. Cynthia goes on to explain why this example worked saying “you need to believe the consequence, and if the consequence has never happened to you or you’ve never known someone to experience it, then you don’t really think it will happen to you.” IE: Perhaps you might not know someone who has died from not wearing their seatbelt, but you likely have experienced being pulled over, or know someone who has been, making the $200 ticket a more “real” potential consequence.

Michael and Cynthia continue to explore several other examples of human factors and how they become introduced in courtroom cases, as well as the many other areas Cynthia’s full-service human factors consulting firm works with using human factors in a wide variety of other industries. The detail to which they discuss human factors in this episode goes well beyond the surface and provides a great understanding in how they play a seemingly granular role with potentially momentous impacts … not unlike how they pertain to space stations.

 

BACKGROUND

Cynthia Rando is the Founder/CEO of Sophic Synergistics, LLC, a Human Factors consulting firm that is focused on optimizing human performance and experience in any environment- Building Better Businesses by Design.TM. Cynthia introduced the SOPHIC Conceptual model to the field, a model that utilizes human factors/human centered design as a profitable business model and strategy.

She has spent 17+ years in the field of Human Factors Design including 12 years at NASA’s Johnson Space Center in Houston, TX. During this time, she provided extensive leadership to the organization addressing several critical areas in Human Factors and Human Centered design including: user interface design, ergonomics, safety and risk mitigation strategies, usability and user experience, accident investigation and root cause analysis activities.  During this time, she was instrumental in spearheading several culture change initiatives and innovative solutions for the agency including: the U.S. Governments’ first use of crowdsourcing as a disruptive business model and the development of the Center of Excellence for Collaborative Innovation and the NASA Human Health and Performance Center.

Cynthia is a Certified Human Factors Professional and the Vice President of the Board of Certification in Professional Ergonomics. She received her B.S. and M.S. in Human Factors Engineering from Clemson University and an MBA from Northeastern University.  She has served as an associate professor at University of Houston Clearlake providing instruction in Human Factors and Ergonomics course material.  Currently, she provides Human Factors consultation to the Texas Medical Center Innovation Incubator assisting medical device and software startup companies.   She also serves on the board of advisors to ORintel for Human Factors and Ergonomics.

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