jurors

87 – John Fisher – A Profound Impact

In this episode of the Trial Lawyer Nation podcast, Michael sits down with accomplished author and New York trial attorney, John Fisher. He and Michael discuss everything from developing real core values and living by them to techniques and practices to better connect with jurors.

Michael and John begin the episode by delving into John’s past and how we became the man he is today. After graduating from law school and facing the inevitable question of “what now?” John was approached by a 30-year-old man who told his story of being “horribly brain-damaged in a bus wreck;” an apparently problematic case that lawyers wouldn’t go near. Thus began John’s interest in personal injury law.

This case would go on to trial, settle for an admittedly “not good amount” after a week of trial, but would serve an even grander purpose of selling John on pursuing this path.

“This is what I wanted to do with the rest of my life, which was not personal injury law; it was serving the most severely disabled people and having a profound impact in their lives.” – John Fisher

After discussing another of John’s previous cases, his criteria for accepting cases, and why he loves having a small caseload (28 active files at the time of recording), Michael asks John how he’s able to sustain his business model with only big damage cases. John responds by saying that they don’t just turn away small or moderate cases, they just don’t handle them; opting instead to refer them out to other attorneys and split the fees. John prefers it this way so that the smaller cases don’t take away from the catastrophic injury cases, which require much more time and attention. That being said, there are some exceptions to this rule.

John goes on to explain that, keeping in line with the mission and core values of his firm, he does accept smaller cases on occasion simply because “it’s the right thing to do.” He believes that practicing law goes beyond compensation for injuries (calling that a “small part of what we do”) and is about improving the quality of care for others in the future.

“I got money for people, but is that what the practice of law is really about?” – John Fisher

Following Michael and John’s agreement that it’s much more powerful to affect changes than to focus solely on the money, Michael follows up on the core values of John’s firm and asks him to elaborate on them. John outlines his firms core values as follows:

  • We only represent the injuries of people who’ve been catastrophically injured
  • We’re brutally honest with our clients
  • We do not accept cases that have questionable merit
  • We will NEVER agree to a confidential settlement

After sharing his own firm’s core values, Michael admires John’s concrete goals in regards to the dates he sets to have a certain number of referral attorneys. When asked where he got the idea for that, John eagerly reorients his camera to show the large gong situated in his office. After explaining the ritual of ringing the gong when his firm attains a new referral attorney, he begins to talk about the “epiphany” he had as a young lawyer.

“My clients [are] not injury victims. My clients are attorneys who can send us a steady stream of cases.” – John Fisher

Michael then redirects the conversation back to John’s core values, explaining that they fascinate him and asking how John came up with them. “There’s a critical difference between aspirational values, meaning what we think we should be doing, and real values which is what are you currently doing.” John explains this premise further by talking about the aspirational values his firm adopted (such as “we treat our clients like family”) and how those were changed completely with his new philosophy.

After further elaborating on his core values and the importance of your team embodying your firm’s values, John goes on to explain the importance of mastering the business of law; a subject that led to the creation of his both of his books: The Power of a System and The Law Firm of Your Dreams. (Note: While both books are available on Amazon, John asks that you message or call him personally, and he will send you a signed copy of either or both books! You can email him at jfisherlawyer@gmail.com or call his cell at 518-265-9131.)

“When you give away everything you that know… it comes back to you in spades.” – John Fisher

Following a brief discussion on the importance of absorbing knowledge from “masterminds,” Michael shifts the conversation to an equally important element for success: mindset. Similar to several topics discussed in Ep 86, John highlights the process of changing your mindset (or “Challenging your Paradigm,” as Joe Fried would put it) when it comes to the cases you accept, why you feel that you should accept them and how that may be wrong.

The conversation topic then shifts from Michael and John sharing their methods for dealing with and moving on from a loss, settlements and moving cases to trial, how they prepare for a trial in the weeks before, the importance of collaborating with fellow attorneys, and John’s MasterMind Experience.

“When you stand up in front of the jury for the first time, what is the most important thing you can do? Screw your notes, throw [them] in the garbage can and bond with the jury.” – John Fisher

John concludes the episode in spectacular fashion by not only giving his contact information, but also giving our listeners access to all of his firm’s policies and procedures via Fisherpedia.com!

Login credentials for Fisherpedia.com coming soon! (please check back for updates)

If you’d like to contact John Fisher you can email him at jfisherlawyer@gmail.com or call his cell at 518-265-9131.

 

Guest Bio

John Fisher is the owner and founder of John H. Fisher, P.C., where he limits his practice to catastrophic injury law for injury victims in New York State.  Over the last 20 years, John’s practice has been limited to the representation of catastrophically injured persons.

John has been cited as a legal expert on numerous occasions by TRIAL magazine of the American Association for Justice and the New York Law Journal, and he speaks frequently for the New York State Bar Association, The National Trial Lawyers, PILMMA, Great Legal Marketing, and county and regional bar associations concerning law practice management, internet marketing for lawyers, referral-based marketing and trial skills.

 

86 – Joe Fried – Challenging Your Paradigm

In this episode of the Trial Lawyer Nation podcast, Michael sits down with our first podcast guest, Joe Fried of Fried Goldberg LLC in Atlanta, GA, and The Truck Accident Law Firm in Jacksonville, FL. He and Michael discuss everything from challenging your paradigm and evaluating your relationship with money, to utilizing curiosity, skepticism, honesty, and vulnerability in the courtroom.

Michael and Joe jump right into the episode by discussing Joe’s incredible set of case settlements in 2020. Michael opens by asking how Joe managed to get more money on these settlements where others with similar case facts have received less. The two share a laugh with Joe’s response of, “Well, if I can just figure that out Michael,” before getting to his thoughts. Joe attributes his “big change” to challenging his valuation paradigms. He talks about self-justifying why he wasn’t getting the results he wanted, citing such instances as venues, blemishes on cases and insurance situations, and then discovering this was feeding own limiting beliefs. Joe elaborates on this by delving into where his beliefs formed.

  • Law schools neglecting to teach how to value a case.
  • Basing value on our venue or mentor paradigms.
  • Blind adherence to insurance companies’ value.

He began questioning these beliefs and was struck by the realization that he had bought into a paradigm that was NOT of his own making and never challenged it. He says this is the beginning of what needs to be talked about and where we need to challenge why we believe what we believe.

“What’s the value of a death case? What’s the value of a broken arm case? Who said that’s the value, and WHY do they get to say it? Step #1 needs to be to challenge your own paradigm.” – Joe Fried

Joe elaborates by saying he doesn’t like asking for money, not even for a fundraiser, and especially not in front of a jury. He talks about the “money messages” he received growing up from ‘you shouldn’t talk about money’ to ‘it’s rude to talk about money’, and how he examined these things for the first time. He explains how he’s still on the journey and tries to look at these beliefs with a fresh perspective.

“If it’s real that our client is going through something that causes them pain every day… if that’s REAL, shouldn’t it be huge?” – Joe Fried

Joe then brings up a very insightful question concerning case value, so it makes the case real and personal. “What would I think the value is if what happened happened to the person I love most in the world. If it’s worth that for my loved one, then shouldn’t it be worth that for the client? Why should it be different?”

Michael follows up on this by asking Joe to talk about how he learns what his clients have gone through well enough to internalize and analyze. “It’s really hard to do that from behind your desk,” Joe responds. He elaborates by stating why you have to get into the client’s life and “really look around.” Interacting with the client, their loved ones, and even their not-so-loved ones can provide tremendous insight into their lives.

Joe talks then about case preparation and discovery being a journey, and more specifically, getting to a place where he’s able to take the jurors on this journey. He believes we should welcome juror’s skepticism because, if we’re being honest with ourselves, they’re probably the same feelings we had in the beginning. Joe believes these skepticisms are all opportunities to build credibility and should be embraced. He calls for us to be honest with ourselves and to bring our natural curiosity and skepticism to the table, which he aptly calls “channeling the jurors.”

“[You’ve got to do] whatever you’ve got to do to make it real, but the person who needs convincing is YOU.” – Joe Fried

Michael and Joe then move on to the importance of “feeling it” and communicating non-verbally over being “word-centric.” Joe comments how the struggle to find words to express what’s there is an art in itself. He then calls back to the journey of the case by saying part of that journey is translating these things to dollars and cents. He recommends believing in the value of your case and to practice saying your number; and not cowering in fear when confronted with the juror’s reactions. He believes this to be a necessary and “woefully underutilized” skillset.

Michael then shares his own relationship with money. He opens up about how he thought he was undeserving of money, money in this business was “dirty,” and how this belief led him to resist running his firm like a business. Luckily, by realizing this mindset and relationship with money were unhealthy, he was able to work on himself, get out of his own way, achieve success, and enjoy the success he attained.

“The credibility that comes from willing to be vulnerable and honest is DRAMATIC.” – Joe Fried

Switching gears, the two discuss working up cases; following up on a conversion they had when Joe came to San Antonio for a deposition. During that conversation, Michael asked if Joe was doing a trial depo or a discovery depo, to which Joe responded, “there’s no difference to me.” Joe explains there have only been a few times he has taken a depo he knew would go to trial. He believes if he’s going to maximize the result in a case, he’s only going to maximize the result in terms of settlement if he does his best to nail the other side in depositions.

The pair then move on to discussing motivation. Joe says that what keeps him motivated is finally feeling like he’s a good lawyer and can make a difference. He’s interested in seeing the success of his partners and associates, teaching other trial lawyers, and being involved on the industry on the safety side. He makes it a point to be able to teach others and challenges listeners to look for ways that go beyond monetary in cases to affect change through policy and procedures that will save lives.

Michael shares how he always feels guilt when settling a death case and reveals how getting a safety change made one of his clients feel better because it went beyond money. Joe builds on this by adding that his firm often contributes very directly to solutions at the settlement table. He welcomes everyone to consider the level of change and safety that could be attained if everyone contributed in this way on at least one case and closes with two challenges:

  • Take a sledgehammer to your limiting beliefs and examine your paradigm
  • We all have a duty to make a difference for the good of humanity

Michael chimes in with a third challenge to take care of yourself as a trial lawyer, and cites Joe’s 537-day streak on the Peloton as an inspiration. Joe responds by looking back on his 30-year career and how he went from an “athlete” to “anything-but-an-athlete” which affected his health. “[My motivator] was a life or death motivator,” Joe says while talking about his poor health during trying times. He cites the book “Atomic Habits” by James Clear as defining how small changes over time lead to massive change in your mindset. Joe says that his renewed energy from his consistent and improved habits have positively impacted his practice and motivation.

Michael and Joe end the episode by recapping their three challenges to the listeners:

  • Change the way you think about cases and expand your mind
  • Change the industry and make the world safer in your cases
  • Take care of yourself while doing it

If you’d like to contact Joe Fried you can email him at joe@friedgoldberg.com.

Guest Bio

Joe Fried is considered by many to be the preeminent truck accident attorney in the country.  His office is in Atlanta, Georgia, but he has handled cases in over 35 states recovering more than $1 billion for his clients.  He is the Founder of the Academy of Truck Accident Attorneys, former Chair of the American Association of Justice Truck Litigation Group, former President of the National Trial Lawyers Trucking Trial Lawyers and founding Chair of the National Board of Truck Accident Lawyers.  He is among the first lawyers to be Board Certified by the National Board of Trial Advocacy in Truck Accident Law and sits on the NBTA Board.  In addition to his expertise in trucking, Joe is a former police officer with advanced training in crash investigation and reconstruction, human factors, psychodrama, storytelling and neurolinguistic programming.   He is widely known for his creative and unique approaches to preparing and presenting cases and for his ability to craft and present the compelling human story in each of his cases.  Joe handles a small number catastrophic truck crash cases at a time so he can focus his resources on achieving the best possible results for his clients.  He spends the rest of his time working as a trucking safety advocate, author and educator. Joe has authored books, DVDs and articles on trucking and litigation best practices, and has Joe given over 600 presentations on these subjects to lawyers, judges, and trucking industry stakeholders.

 

77 – Gregory Cusimano – Understanding & Utilizing The Jury Bias Model

In this episode of the Trial Lawyer Nation podcast, Michael sits down with trial lawyer and consultant Gregory Cusimano. As one of the authors of “Winning Case Preparation: Understanding Jury Bias, Gregory has conducted a plethora of research on why plaintiff’s lawyers win and lose cases. He and Michael discuss his 10 part jury bias model in detail and how you can apply it to your own cases. 

They start off the episode with Michael asking Gregory how he first got involved with this research. He explains how it began as an AAJ committee which he co-chaired with attorney David Winters. The committee was instated because there had been a trend of good lawyers losing good cases, and they wanted to understand why it was happening. After conducting around 1,000 focus groups on every case type imaginable, they developed the foundations of the jury bias model. 

Gregory goes on to share how it didn’t take long to identify the five common anti-plaintiff biases, which they called “untried issues.” These are issues which are important to a jury, but not to the plaintiff’s lawyer, so most lawyers would try the case without ever addressing them. The initial 5 untried issues included personal responsibility, suspicion, victimization, “stuff” happens, and “blame the plaintiff.” While some of these may seem obvious, Gregory explains why understanding these issues is critical for your case 

Michael then asks Gregory what plaintiff’s lawyers can do about these issues, which he admits was the much harder answer to find. In time, he was able to come up with the “10 Commandments,” or 10 decision-making events or aspects that tend to work. He emphasizes that these are in no way a fool-proof formula to win every case, but instead are a way to use social science to present your case in the best way possible.  

The first (and incredibly important) step is to develop the trial storyThe story should be discovered through jury research. Then, you frame your trial story to be consistent with the beliefs of the potential jurors in your venue. Gregory then eloquently ties in the concepts of Fundamental Attribution Error and Availability principle to explain how important framing and ordering of the facts is to the success of your case.  

The next step is to elicit confirmation. Once you’ve found through research what the jurors in your venue believe, you need to present the case in a way which is “hand in glove” to what they already believe. When Michael asks Gregory how the lawyer should figure this out, his answer is fitting with the research he’s done: concept focus groups. If the case warrants it, this is the gold standard in Gregory’s opinion. If it’s a smaller case or you don’t have the funds to hire an outside consultant to hold the focus group, Gregory STRONGLY cautions against attempting to do it yourself. Instead, you should ask colleagues, friends, or family to participate in the process. This is because lawyers are already so invested in their own cases it’s nearly impossible to not project your own biases to your mock jury. Lastly, it’s important to remember that a focus group is qualitative, not quantitative research. A group of 10 is not a big enough sample size to conclude why you need a specific type of person on your jury. 

Another “commandment” is to “head the norm.” Gregory explains how this stems from the “norm principal,” and when applied to trial it means if the conduct of the defendant is “according to the norm,” juries are not likely to find liability. He shares an example of a case he had where a man was on the back of a garbage truck that crashed into another vehicle, amputating the man’s leg. He thought the case was perfect, but he kept losing in every focus group and mock trial. Eventually, he realized even though men standing on the back of a garbage truck is incredibly dangerous, every juror had seen people doing it. It was the norm, so they never found liability.  

They move on to discuss another commandment, “plan for hindsight bias.” This is framing your case in a way where a jury would think, “I knew that was going to happen.” For example, a product liability case begins in a corporate boardroom six years ago when they decided not to go with a safer option. As you share the subsequent meetings and decisions made, the jury already knows how the story is going to go when your client swerves to avoid a puppy in the road.  

The next commandment is to create empathy. ReferencingThinking Fast, Thinking Slowby Danny Kahneman, he explains how there are two distinct ways in which people make decisions – intuitive or logical and reasonable. It may seem backwards, but if you can get the jury to project empathy, they will begin to use more logic and analyze. Gregory then emphasizes empathy is NOT sympathy, and shares why it is such an important distinction. 

They move on to briefly discuss Michael’s favorite commandment, “drop the anchor” before the 10th and final commandment, “build the frame.” Citing Mark Mandell, Gregory elaborates that framing can be both overall and very minor. He and Michael both share examples they’ve used in cases which appear minor, but made a huge difference in the jury’s perception of a statement. 

They conclude the episode by discussing the third and final section of Gregory’s book, the new method for putting a case together. He describes how he uses the 10 commandments in such a clear and concise way anyone who puts in the work can do it. In fact, this strategy has been so successful that Gregory and his team have found it will move a good case 15-20% into the plaintiff lawyer’s favor! This incredibly informative episode is truly a must-listen for any plaintiff lawyer who wants a leg up with the jury!  

If you’d like to contact Gregory to learn more from him or to consult on a case, you can email him at greg@winningworks.com or call his office at 256-543-0400.  

 

Guest Bio:  

Gregory S. Cusimano is an owner of the law firm of Cusimano, Roberts, Mills & Knowlton, LLC in Gadsden, Al. and Winning Works LLC a national trial consulting firm. He concentrates his practice on serious personal injury and death cases.   He is a frequent speaker at continuing legal education programs throughout the country. Mr. Cusimano was twice elected to serve on AAJ’s Executive Committee and budget Committee, was chair of the ATLA Blue Ribbon Committee to study juror bias and continues to conduct research on tort reform rhetoric and juror attitudes.  He, along with David A. Wenner, developed the Jury Bias Model™ that many say revolutionized how cases are tried today. 

Cusimano has held every elected office in the Alabama Trial Lawyers Association, including president. The Association has honored him with an annual Cusimano Symposium.  He was appointed by the Alabama Supreme Court to committees to rewrite Alabama Rules of Evidence, the Alabama Pattern Jury Instructions, and to revise the Alabama Rules of Civil Procedure. On two occasions, Mr. Cusimano was asked to be the plenary speaker at his State Bar Association’s annual meeting. He served on the President’s Council of the ATLA, (American Association for Justice – AAJ), and was the first to be made a Lifetime Member of the Board of Governors, 

Mr. Cusimano has published numerous articles in state and national magazines and contributed to articles in various treatises.  He is contributing editor of the two volume Alabama Tort Law book, through the fourth edition and co-edited the six-volume set Litigating Tort Cases. He is one of the authors to Winning Case Preparation  published by Trial Guides. He is listed in Best Lawyers of America and is a Life Member in the National Registry of Who’s Who in American Law. Cusimano was the second inductee into the Hall of Fame of the Small Office Practice Section of AAJ.  He is a Diplomate of the International Academy of Litigators and The American Board of Trial Advocates. The designation of Diplomat and Champion of Trial Advocacy was bestowed on him by AAJ’s National College of Advocacy.  He was inducted as a Fellow of the American Bar Foundation, and the Alabama Law Foundation.  Cusimano served as Chairperson of the National College of Advocacy.  He was given the prestigious Lifetime Achievement Award by the Association of Trial Lawyers of America and the Leonard Ring Champion of Justice Award by AAJ. 

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

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

30 – Mark Kosieradzki – Galvanizing Depositions

Mark Kosieradzki – Galvanizing Depositions

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In this Trial Lawyer Nation podcast, Michael Cowen sits down with well-known attorney, author of 30(b)(6) Deposing Corporations, Organizations & the Government  and Deposition Obstruction: Breaking Through, and long-time presenter at countless legal events, Mark Kosieradzki. This is the best legal podcast for new lawyers.

Mark recalls growing up with parents who were scrappy, rightfully so given their startling history, who instilled in him to stand up for principles, ultimately leading him down the path of becoming a trial lawyer. He points out that many go into the field with a “win at all costs” type mentality, but his father always told him that “if you cheat to win, you really didn’t win,” which he continues to carry with him throughout his successful career in law today.

Mark describes one of the most successful tools he has learned to use in the courtroom are the rules themselves. He finds it to be a lot less stressful when you use the rules to get to the truth and if you play by the rules, you can force the other side to play by them too, which most times is not to their advantage. When Michael asks him how he might know if the opposing side is hiding something from you or not telling the truth, Mark very candidly replies that he starts with the premise that they are, and that trial lawyers want to tell the jury a story whereas a litigator wants to hide evidence. He goes on to impart that when they say they are going to give you “everything,” it’s really more like code for saying we’ll give you everything that doesn’t hurt their case.

Mark shares his evolution of new techniques regarding how he approaches depositions. He starts with a lot of case analysis, storyboarding, puts all his information in “buckets,” and then looks at what he’s trying to accomplish. With that, he starts with the assumption that one person could provide all the information, then structures an outline of what this one person could tell him and works at it to identify what documents are being electronically stored. Then he creates a request for production but doesn’t serve it, knowing there will be immediate objections. Next, he creates a 30(b)(6) designee deposition with a schedule of documents in it but doesn’t request the documents. We’d like someone who can provide all known documents in the organization that exist in this category, Mark continues. Where are they located, how are they organized, and most importantly, what are the methods available for searching? Without having requested anything, we are establishing the most effective and efficient way to request the electronic information, while also preempted all the boilerplate objections before we ask for them. Michael wonders about getting any push back regarding doing discovery on discovery to which Mark explains there is no discovery on discovery because you haven’t asked for the documents yet. Which is brilliant!

Michael asks how Mark structures his life to where he has time to storyboard, plot out cases, take depositions, and then craft his cases. The simple answer, Mark replies, is to just say “NO” to cases, continuing to say that his firm currently turns down 6-8 cases a day and work with small caseloads. Mark remembers starting out as a volume lawyer with 250-300 cases and works with the mentality of getting as many cases as you can and then you settle them based on getting each case’s fixed value with as little work as possible. That type of nonsense, however, assumes that the other side determines the value of each case. He’s also found that by spending more time up front on a case, their hourly value has gone up significantly because they take the time to get the evidence and prove each case. Michael relates his own firm where he’s found the fewer cases each of his lawyers have, the more revenue each lawyer generates. Settlements have gone up, the time from intake to the settlement has gone down, and the personal satisfaction of being able to be a craftsman of doing good for clients is significantly rewarding. It wasn’t until he got rid of the fear in his own mind that if you tell a referring attorney “no” on a case, they will disappear forever. When, in fact, the more time you can spend on the right type of case for yourself, the better the outcomes will be, and the more people will respect you and your practice. It also allows you more time to communicate with your clients which allows them to trust you more by knowing you have their best interests at heart.

The conversation shifts to talk about storyboarding cases. Mark describes the process as for where you lay out what your story to the jury ultimately will be and how you will focus the jury to consider the information which is important in your case. Mark points out that there are many great resources like Cusimano, Wenner, Rick Friedman, Carl Bettinger, and David Ball who have different methods of storyboarding cases, all of which are great, but he doesn’t subscribe to just one method. He explains how he tries to learn ALL the different methods because this is not a checkbox profession, but rather one requiring you to stay nimble in your approach in order to be able to counteract whatever gets thrown at you from the other side. In general, he starts first with a chronological account of the case from beginning to end, which admittedly isn’t always the most persuasive one. Then he begins to craft what he would like the jury to focus on first which in most cases is the decision making that has taken place by the wrongdoer. Mark shares a story using the information availability method that really drives the point home on the importance of sequencing details. Then to take things even a step further, they begin to formulate through whose eyes will they tell their story which is equally important given that there are hundreds of perspectives a story can be told…just ask Stephen Spielberg.

Michael and Mark round out this podcast by hitting on hot-button issues including how to structure your questions to establish if the person being deposed is prepared, what you are really trying to get out of a deposition, and how to prove your oppositions unpreparedness. Mark also talks through a real-life example of how all these different techniques were used in a past case of his: Boswell v. Sherman County. The details of which are simply astounding and need to be heard for yourself. They wrap up with a brief discussion on what the future holds for Mark and even sneak in a little surprise at the end.

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

 

BACKGROUND ON MARK KOSIERADZKI

Mark Kosieradzki is a trial lawyer from Minneapolis, MN.  His 40-year career has spanned a vast array of cases throughout the United States.  Mark’s landmark civil right case on behalf of an incarcerated woman resulted in the application of section 1983 protections to detainees. His work on sexual abuse was featured in a CNN series on Rape in Nursing Homes.

http://www.cnn.com/interactive/2017/02/health/nursing-home-sex-abuse-investigation/

The Minneapolis Star Tribune has described him as “one of the nation’s most feared elder abuse litigators.” http://www.startribune.com/meet-the-minnesota-lawyer-taking-on-the-senior-care-industry/450626193/

He is recognized in the “Best Lawyers in America”.  He is certified by the National Board of Trial Advocacy as a Civil Trial Specialist.

Mark is recognized as one of the country’s leading authorities on deposition technique, strategy, and law.  He is the author of 30(B)(6): Deposing Corporations, Organizations & the Government, published by Trial Guides. His book Deposition Obstruction: Breaking Through has been described as the hornbook for dealing with deposition obstruction.

Mark has joined trial teams throughout the United States in a wide variety of wrongful death and catastrophic injury cases, including malpractice, bad faith, construction injuries, nursing home abuse, interstate trucking accidents, and products liability.

When Mark turned 50, he had a midlife crisis and started playing the blues harmonica. At 63 he took up salsa dancing in Havana.

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