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

By Michael Cowen — 10 months ago

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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.lawℱ, 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.

 

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84 – John Sloan – Experienced Listening

By Michael Cowen — 2 years ago

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In this episode of the Trial Lawyer Nation podcast, Michael sits down with renowned trial lawyer John Sloan. They dig into the vast experience John has acquired in his 40-year career as a trial lawyer, focusing on how he got where he is today, using role reversal techniques to better understand both clients and defendants, and his jury verdict on what he calls his “favorite case ever.”

Michael and John start the episode with a look at where John started and how he became successful. He shares how his boss right out of law school told him to figure everything out for himself, something that was tough at the time (especially when he announced ready for a murder trial just 5 weeks after being sworn in!) but instilled in him a work ethic which has served him well. He continued to learn all he could from other prominent lawyers in town and work countless weekends until he built his skillset up enough to focus on personal injury cases. When it comes down to it, John insists there is no substitute to putting in the hard work of learning both your case and trial skills.

The pair continues this note with some advice for young lawyers who want to get in the courtroom. While John concedes that it’s harder to try cases than when he started, he insists the opportunities are out there if you’re willing to work for them. Michael agrees and adds that young lawyers need to be willing to “pay their dues” by trying some not-so-great cases before getting to try awesome cases. He and John then discuss how they cope with losing at trial, and even highlight a shocking benefit of taking cases to trial even if you lose them.

Michael then moves on to ask John about how he uses role reversal techniques to get to know his clients on a deeper level. It comes down to really taking the time to get to know your client, instead of just asking them questions to elicit facts about the case. It not only makes the attorney-client relationship more meaningful, but it also helps the lawyer be a better advocate for the client. John then elaborates why you don’t need to do a full-day psychodrama to use these techniques. You need to learn the skills first, but you and your staff can use role reversal techniques with your clients in everyday conversations.

Among those techniques is something John calls “listening with a 3rd ear,” which he describes as listening for the story beneath the words being spoken. It’s the emotional content of what you’re hearing from the client, whether it’s actually stated or not. Michael shares when he does this, he makes a point to check in with the client and confirm it’s actually representative of how they’re feeling. John agrees and adds some more interesting strategies for building this connection with your clients.

Michael then shifts gears to the defendant- can you use these role reversal techniques with the people on the other side of the case? John says, “Absolutely.” He explains how he likes to do this introspectively before a deposition. What would they say to their lawyer that they would never say to you? Then, frame the questions you ask around that. Michael tries to approach the defendant (especially the defendant driver) from a place of understanding, which allows the jury to get mad at the defendant company in their own time.

After a brief but insightful conversation about the importance of treating each of your cases as individuals, John and Michael discuss the power of saying no to cases which don’t suit you. John reflects on when he first started his own firm and would take any case just to bring some money in. To this day, that mentality has made saying no to a good case tough for him. But he and Michael agree there comes a point in your career where you need to prioritize your time.

If you’ve listened to Trial Lawyer Nation, you know Michael loves a good trial story; and John’s jury verdict in Tampa, Florida couldn’t be left undiscussed. Between being able to try the case with his nephew, the low-ball offer the defense made right before trial, and the client being one of the most genuine and hard-working people John had ever met, this trial story will resonate with every trial lawyer listening.  John says it was one of those trials where “everything just went right,” and the result is an inspiring way to end the episode.

If you’d like to learn more from John Sloan or contact him about a case, visit his website or give him a call at (800) 730-0099.

This podcast episode also covers why sharing information benefits everybody, the importance of training your staff to use role reversal techniques with clients, how to frame the defendant driver as a victim of the company, disciplining yourself to say no to cases, and so much more.

 

Guest Bio:

As a boy growing up in Henderson, John Sloan thought he might become a preacher some day. However, by the time he began his undergraduate studies at Baylor University, John made up his mind: He was going to be a trial lawyer.

John received his Bachelor of Business Administration degree from Baylor in 1977 and enrolled at Baylor Law School, where he began to hone his trial skills in the school’s renowned Practice Court.

He earned his J.D. in 1980 and returned to East Texas, joining a firm in Henderson.  John immediately began trying cases, including a murder trial just five weeks after he received his law license.

Two-and-a-half years after he started work at the law firm, John decided that he wanted to focus on personal injury cases. He moved to Longview and opened his own practice. He has been trying cases in East Texas and courts across the country ever since.

At the time he established Sloan Law Firm, John says, he wanted to create a law firm that would provide exceptional personal service to its clients.

“I wanted us to not be a mill where people are just numbers and don’t have a lot of contact with the lawyers,” he says. “I wanted to be able to know my clients personally.”

In addition to offering clients a personal touch, John also provides zealous advocacy. He has achieved several significant verdicts and settlements for his clients. His cases generally involve truck and auto accidents, defective products, and oilfield accidents. He also focuses on brain injury cases.

While courtroom victories are satisfying, John finds that his practice provides many other rewards.

“I like the people I get to work with—the clients—and I like the people here in the office. I like the variety. I like the competition, the battle, the mental gymnastics, being able to outwit and outwork my opponents,” John says.

John’s commitment to the trial lawyer profession has extended to the prestigious Trial Lawyers College. John attended the College in 1998 and joined the teaching staff in 2002. He was named to the Board of Directors in 2010 and as President in 2014.

John also engages in community service. For several years, he served on the Board of Directors of Habitat for Humanity. He has also worked with Justice for Children, which provides pro bono legal advocacy for criminally abused children. He has coached kids in just about every sport.

In his personal time, John enjoys being active and has participated in numerous triathlons. His primary interest is his small farm outside Longview, where he grows trees and unwinds from his busy law practice.  He is married to the former Dee Anne Allen from Tyler, Texas, and they have two children, Trey Sloan and Veronika Sloan.

 

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78 – Randy Sorrels – Masked Justice: Part 4

By Michael Cowen — 2 years ago

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In this episode of the Trial Lawyer Nation podcast, Michael sits down with former President of the State Bar of Texas, Randy Sorrels for another installation of our Masked Justice series. Randy recently tried an interesting case where he represented the sons of two former professional baseball stars and received a $3.25 million verdict. They’ll cover that recent victory, how this trial was different from a pre-COVID trial, what it’s like representing famous clients in high profile cases, Randy’s service to his clients, and more.

They start off the episode by digging into Randy’s background. As a defense lawyer at a large firm early in his career, he was able to gain experience trying cases quickly after law school. That experience has proved invaluable since transitioning to exclusively plaintiff’s work, and he notes some interesting differences between how a plaintiff’s lawyer and a defense lawyer try a case. He then sums this up by stating, “Trials always happen because one side mis-evaluates the case. I’ve been on both sides of that.”

Michael then transitions the conversation to Randy’s recent trial verdict, and Randy starts by sharing the facts of the case. His clients were two minor league baseball players, who just happened to be the sons of former professional baseball players (and close friends) Roger Clemens and Mike Capel. The two young men were at a high-end bar/night club on New Year’s Eve of 2018 when they were brutally attacked by a bouncer and, Randy claims, the owner of the venue. After a “scuffle” which neither of the men were involved in broke out, they were both violently thrown out of the bar, causing Kacy Clemens injury to his throwing elbow and Conner Capel a fracture to the skull. But more importantly, they both suffered tarnished reputations for “being in a bar fight,” something the MLB does not take lightly.

Randy was hired on the case almost immediately, leading Michael to ask what he did to preserve evidence. He shares how the police attempted to preserve the security footage from the incident, but after a suspicious interaction with the owner, they were informed the cameras only live stream and do not record. Luckily, video of the incident had been captured on cell phones from patrons. This footage was the evidence needed to prove neither of the men were involved in the fight.

Michael then digs deeper into the mechanics of Randy’s COVID-era trial, which was held in person in Harris County, Texas. Randy explains how they selected the jury in a large convention center and how the judge did an excellent job with maintaining a safe environment for everybody. The courthouse setup placed the jurors where the audience usually sits and placed the witnesses in the jury box. If you stood up, you had to wear a mask- something Randy avoided doing for the first couple days of trial, but once he stood up with the mask on, he noticed jurors were paying better attention than when he was seated and mask-less.

Randy then discusses why he does not believe there was a negative effect on the jurors with Covid safety protocols, and though he was initially concerned the jury pool would lean conservative, it ended up being a very diverse and representative jury. And while this trial was far from “normal,” Randy is very satisfied with the $3.25 million verdict he received for his clients and was highly impressed with Harris County’s system for in-person trials during the pandemic.

Aside from the unusual circumstances surrounding the trial brought on by the pandemic, Michael is curious as to how you convince a jury to award a professional athlete’s son a 7-figure verdict. Randy explains how it was a challenge, especially because both clients were working within 10 days of the incident, but in the end it worked out. In fact, Roger Clemens’ testimony was especially powerful to the case. Randy shares an amazing story of what happened when the defense attorney tried to grill Roger about allegations of steroid use, but ended up saying, “I’m a huge fan, and you’re a hell of a baseball player.”

This wasn’t Randy’s first rodeo representing a famous client. Early in his career, he also represented Ozzy Osbourne after he was rear-ended in a taxi in Houston (something that left Michael star struck)! While his whiplash injury was seemingly minor, Randy explains how it turned into a fairly large case because Ozzy had to cancel 3 shows for the most rockstar reason you’ve EVER heard. This story is a must-listen for metal fans and legal enthusiasts alike!

Randy also explains how important service is to him through his time as the State Bar of Texas President, a mostly unpaid position which he served in for a year. He believes interacting with lawyers on both sides has made him an even better trial lawyer today, and helped give him the state-wide notoriety to start his own firm, Sorrels Law. Michael also points out how Randy will share when he gets the policy limits on a case with a $30,000 policy limit. But Randy explains why those cases are still important and deserve representation, something he’s happy to give them.

The pair end the episode with another unbelievable story from Randy’s most recent trial, involving a lovable defense witness with a hidden secret. This really is one you need to hear to believe!

This podcast episode also covers why Randy was hired so quickly on the Clemens case, a creative place to search for footage of a crash, the safety precautions taken by the court, whether or not you should conduct jury research before a trial, why big verdicts are good for all plaintiff’s lawyers (even if it’s not your own), and so much more.

If you’d like to speak with Randy Sorrels you can email him at randy@sorrelslaw.com or call his cell phone at (713) 582-8005.

 

Guest Bio:

Randy Sorrels is the Immediate Past President of the State Bar of Texas, which consists of almost 105,000 lawyers. Texas lawyers voted him to this position by the widest margin of victory in State Bar election history. As a Texas lawyer, Randy has also been named one of the top 100 lawyers in Texas for the last 14 years by Texas Super Lawyers magazine.

Randy holds five board certifications from the Texas Board of Legal Specialization and the National Board of Trial Advocacy. He has extensive experience handling personal injury cases, medical malpractice cases, and business disputes – including “bet the company” cases.

Most recently, Randy has been named the Best Lawyers¼ Medical Malpractice Law – Plaintiffs “Lawyer of the Year”, in Houston, and this is his third time for him to receive this honor. He has also been awarded some of the highest legal honors in Texas. He has been awarded the State Bar of Texas’ President’s Award (recognizing the one Texas Lawyer who provided the most outstanding contributions through distinguished service to the lawyers of Texas), the Judge Sam Williams Award (recognizing the Texas lawyer who provides the greatest contribution to both local bars and the State Bar of Texas), and the Houston Bar Association President’s Award (recognizing significant contributions to an HBA program). Early in his career, Randy was honored with the Woodrow B. Seals Outstanding Young Lawyer of Houston Award (recognizing the one young Houston lawyer who exemplified significant professional traits both inside and outside the practice of law).

 

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58 – Nick Rowley – Brutal Honesty

By Michael Cowen — 3 years ago

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In this long-awaited podcast, Michael sits down with renowned trial lawyer Nick Rowley. They discuss Nick’s journey to success, how he came up with “brutal honesty,” his book “Running With the Bulls,” the secret to settling high value cases, saying “no” to the defense, and Nick’s advice for how to become a better trial lawyer.

The conversation begins with Nick sharing his path to becoming the record-breaking trial lawyer he is today. Nick describes himself as a “juvenile delinquent” when he was a child. He was bullied a lot in school and expelled from every school he attended. After graduation, he decided to join the military to “kill bad guys,” but ended up becoming a medic. It was this role that fueled him with purpose. Using his GI Bill, Nick finished his bachelor’s degree and attended law school to continue his desire to help others, which he describes as an addiction.

Nick was never afraid to take tough cases to trial and losing, because he grew up getting beat up. He adds that even if he does lose, he learns more from his losses than his wins and they help make him a better lawyer. Michael echoes this sentiment and agrees that losses hurt in the short-term, but don’t bother him in the long run.

The conversation shifts when Michael shares how he’s noticed most top trial lawyers weren’t “born with a silver spoon in their mouth,” to which Nick wholeheartedly agrees. “It’s about life experience,” Nick states. He goes on to explain how if you’ve never had to work hard, experience failure, been afraid, or gone without, you don’t have the same “hunger” as someone who has. Nick emphasizes the importance of inner drive and notes trial lawyers who grew up without anything know if they don’t put in the work, no one else is going to do it for them. Michael also explains how it’s easier to feel comfortable in a client’s home when you’re used to the environment most of them live in. Both share stories of getting to know clients on a personal level and how this translates to a successful jury verdict.

Michael then transitions by asking Nick which case he is most proud of in his established career. Instead of talking about his largest verdict, he shares a story of a smaller verdict on a particularly challenging case. After being called upon by a lawyer having severe health issues the day before his trial was set to begin, Nick flew out to Santa Monica to help get the case continued. The defense lawyer was uncooperative and lacked the slightest bit of sympathy for the attorney, so Nick decided to try it without any prior knowledge of the case. His description of voir dire and addressing what he saw as the pain points of the case with brutal honesty is riveting and concludes with a $1.5 million verdict based solely on non-economic damages.

Nick is highly regarded as a trial lawyer for many reasons, but he is probably most famous for coining the term “brutally honest” in jury selection. Nick shares the story of how he came up with the term and explains why it works so well. He emphasizes the importance of asking jurors to define “brutal honesty” themselves, then asking them to please be brutally honest with you. This strategy has made a huge difference in Nick’s jury selection process. As an example, Michael role plays as a juror who doesn’t believe in money for pain. Through this example, Nick shows how he would address a juror with these views. Michael and Nick both agree stereotyping jurors immediately is an ineffective strategy and should be avoided.

The conversation shifts into a discussion of Nick’s book, “Running With the Bulls.” Michael inquires as to why Nick decided to write a book about settling cases when he is most famous for trying cases. Nick answers simply, “I do settle cases.” Nick insists the secret to settling cases for high value is “having the balls to go to trial.” He describes his frustration with not getting paid after a jury verdict and started thinking of ways to preemptively strike against this, so as soon as he gets his jury verdict he is “able to collect it immediately.” This resulted in Nick crafting a process to “expose the bullshit” and the insurance company puppet masters, a process he shares with fellow plaintiff attorneys to help raise the bar for everyone.

Michael shares the chapter of the book which resonated with him the most, “The Power of No.” He explains how he still feels bad for saying “no” to the defense, even though he knows better. Nick believes most trial lawyers are gentle, accommodating people by nature. He shares a strategy for re-framing this mindset when it comes to the defense, ending with, “They are the enemy, because they’re working for the enemy 
 be kind and accommodating. But when it comes to money, don’t hold anything back.”

The two transition into a discussion of criteria for accepting cases. Nick states there aren’t criteria. For him it is asking himself – Do I feel something inside? Is there something I can do for this person? Can I imagine myself standing in front of the jury? He notes that in an ideal world, he would only work on large cases, but argues the small cases are just as important, stating “If I’m not willing to take these cases, who else is?” For example, a case where a child was killed in a state with a $250,000 cap on non-economic damages is still a case worth fighting for. Nick emphasizes the need for industry leaders to set an example for other lawyers by taking on these worthy cases, even if they don’t lead to a huge payout.

The conversation ends with Michael asking Nick what he thinks a lawyer needs to do to be the next Nick Rowley. Nick states, “I want the lawyer who has the drive to do whatever it takes.” He emphasizes the importance of learning everything available from industry experts, listing off a multitude of names including Keith Mitnik, David Ball, Randi McGinn, and many more. He adds that having the guts to try difficult cases, learning from your losses, and breaking the mold are incredibly important in the journey to becoming a successful trial lawyer.

If you’d like to learn more from Nick Rowley, subscribe to the Trial By Human and Trial By Women list serves, attend his seminars, or visit his website to find more information about bringing Nick in on a case. You can also support Nick’s political efforts to fight the $250,000 cap on non-economic damages by visiting fairnessact.com.

This podcast also covers taking care of yourself during trial, lifting state caps on non-economic damages, the pain of trying a wrongful death case, where Nick is trying to improve, and so much more.

 

BACKGROUND ON NICK ROWLEY

Many consider Nicholas C. Rowley to be the most accomplished trial lawyer of his generation. He has extensive courtroom experience representing victims of serious injuries and medical malpractice, especially those who have suffered traumatic brain injuries, spinal injuries, and chronic pain. In 2009 and 2010, the Consumer Attorneys Association of Los Angeles (CAALA) named Nick as a finalist for its prestigious “Trial Lawyer of the Year” award. Nick was also recognized by the Los Angeles Daily Journal for winning a “Top Verdict of 2010” for his $31.6 million jury verdict for the victim of a traumatic brain injury. In 2012, Nick was a finalist for the “Consumer Attorney of the Year” award, given by CAOC (Consumer Attorneys of California). In 2009, the Consumer Attorneys of San Diego awarded Nick its “Outstanding Trial Lawyer” award. In 2013, Nick was honored with the organization’s top award – “Outstanding Trial Lawyer of the Year“.  Also Some of Nick’s other recent successes include a record-setting $74,525,000 verdict for a victim of medical malpractice, a $38,600,000 jury verdict for a young man who fell from a hotel balcony while intoxicated, a $17,000,000 win for woman who suffered a mild traumatic brain injury caused by a fall from a hotel window and a $13,860,000 win for a mild traumatic brain injury caused by an automobile crash.

Nick has served as an instructor at Gerry Spence’s famed Trial Lawyers College and delivers keynote addresses nationwide on his revolutionary approach to voir dire and damages. Other lawyers, faced with low settlement offers from insurance companies, frequently bring Nick into their cases just before trial. Nick is a relentless warrior who has prevailed in the courtroom time and time again. He prides himself on his caring and empathetic approach to working with his clients and their families, and his ability to help juries find the truth and deliver justice to the injured.

Nick is on the Board of Directors of the Imagination Workshop, which is a non-profit theater arts organization committed to using the unique power of the theater to provide life-changing artistic opportunities to the mentally ill, homeless veterans, senior citizens, and ‘at-risk’ young people. IW programs give troubled people, frequently alienated or overlooked by society, a safe way to express themselves and gain insight that often helps make their lives more successful.

Nick is also on the Honorary Board of Governors of TLC, Los Angeles Trial Lawyers’  Charties, a non-profit organization whose purpose is to make a positive difference in the quality of life for people within the greater Los Angeles area, focusing on issues related to education, children, battered women, persons with disabilities, and homelessness, by providing financial assistance to needy persons and groups in the greater Los Angeles area.

Nick is the author of the book Trial By Human, where he candidly shares his approach that brings brutal honesty and humanity into the courtroom.

 

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53 – Malorie Peacock – The Verdict Is In! Post Trial Discussion

By Michael Cowen — 3 years ago

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In this Trial Lawyer Nation podcast, Michael Cowen talks with his law partner Malorie Peacock about their recent jury verdict. (In Episode 51 they discussed trial prep and included how they were preparing for an upcoming trial.) This time they will be discussing their $3,420,000 jury verdict, what worked well, how they overcame the challenges of this case, and the power “of a trial to heal.”

Malorie starts by sharing the background on the case. This was a construction site incident where their client was working when a trench collapsed and killed him. OSHA (Occupational Safety and Health Administration) found the company did not provide the required trench protection. (For our listeners outside of Texas, Michael explains that in Texas there is optional workers comp, so the company did not have workers comp at the time and he was able to directly sue the employer.)

At face value, this may seem “like an easy win.” However, there were challenges in the case. The first was the lack of eyewitnesses, which was an obstacle for liability, so the case required the use of witness statements. OSHA keeps their witness statements anonymous, so the ambiguity made it more difficult than using a live person. Because of this Michael and Malorie knew there would be doubt in the minds of the jurors, so Michael had to use Keith Mitnik’s philosophy “doubt is not an out” in order to address the issue of anonymous statements that didn’t answer all of the questions in this incident.

Another challenge on the case, which related to damages, was the client being undocumented and working under a different name. This was “the elephant in the room,” which Michael and Malorie discuss in detail explaining why they chose to share this information in trial (even if most lawyers fight to have this excluded). Michael also points out his absolute shock with the defense alleging this was a sham marriage just for papers and provides insight on how a lack of photos and the appearance of the widow was used to argue this.

After sharing the challenges of the case, the topic shifts to jury selection and how a large portion of their jury panel knew about OSHA. Michael also shares his disappointment to his question “who would like to be on the jury,” but Malorie felt differently and was very impressed with the response. In this trial Michael used Sari de la Motte’s inclusive voir dire, shares how it was received by the jury panel, and the result of it making the defense “be reactive instead of proactive.”

Using visuals to educate the jurors was also important, but this doesn’t happen overnight. They discuss how they planned the visuals, why you need to show them to your experts, and talk about how they can be used in an expert testimony. When you use PowerPoint in trial it forces you to stick to a visual plan, but with poster boards you can decide IF you want to use it AND when. Malorie loved when a juror would ask one of them to “move a little bit over” so they could read a poster board. And Michael loved that the jury felt comfortable enough to ask them to move out of the way. This showed them the jury wanted to understand the information and knew why it was important to see it.

The podcast ends with an emotionally raw and incredibly honest conversation about the power “of a trial to heal.” Malorie shares the moment when the jury put money in the blanks the client “started sobbing uncontrollably” and how powerful it was for both her and their client. Trial is “the last stage of closure” in a death case. It is extremely significant and impactful for your client.

This podcast also covers the interesting questions the jury asked and how those questions were answered, feedback from the two alternate jurors, what you can learn from the defense voir dire, dealing with spacing issues in the courtroom, the surprising link between OSHA and high school theatre sets, the process of building trust with your client, the differences between an injury case and a death case, as well as other trial details you will want to hear.