malorie peacock

28 – Malorie Peacock – Storytelling in the Courtroom

In this episode of Trial Lawyer Nation, Michael Cowen sits down with Cowen | Rodriguez | Peacock partner, Malorie Peacock, for another installment of TLN Table Talk to answer the questions of our listeners. Today’s topic focuses on story telling in trial and identifying the “characters” in your case.

They begin with the most obvious question on today’s topic, why do we want to tell a story instead of just presenting our facts? Michael explains that people don’t learn through cold, clinical facts and if you want a juror to connect to your client’s situation, they must relate to it. The easiest and most effective way for them to relate is oftentimes through a story. Michael adds that we are genetically programed to think in story, going all the way back to the camp fire in the cave scenario, also noting that people can tell when a story is not right. Malorie also describes what stories are on a very basic level, in that they aren’t something that is made up for a trial, but rather something that is very specific and still based on facts. A sequence of events with a beginning, middle, and an end with characters who have motivations for doing things.

Conversely, the real danger of not having a story, Michael explains, is that the jurors are going to come up with a story. For Michael’s team, the story might be about the greedy trucking company who pushed their drivers to drive more hours than are safe on the road, just to make more money. Whereas, a different story that could be formulated by a juror on their own might be about a greedy plaintiff’s lawyer who took a case and is trying to make a lot of money from it. And because the juror wants to be the “hero” of the story, they might stop the attorney from getting that money. This puts even more importance on the story that gets told, for the client’s benefit.

Does every story need to have a hero? Yes, and it’s always the same group of heroes (the jury). Michael refers to a book written by Carl Bettinger called Twelve Heroes, One Voice, that has really helped him to understand the dynamics of storytelling, heroes and villains, and how the jury must be the hero in a trial. He also notes that this book transformed his thinking from where he had thought he, as the attorney or his client needed to be the hero, when in reality, the only ones who can do anything heroic are the jurors, because they’re the ones who can save the day.

Michael points out that it is important when starting to storyboard your case that you carefully consider who the “villain” is while also keeping an open mind to the idea that it could always change before going to trial. Michael has gone so far as to research and study playwriting and screenwriting books to find out what the common characteristics of villains are, since most people have learned about heroes and villains through watching movies or tv and he wanted to be able to give people a story structure that they can relate to. He lays out his findings of the 5 ideal characteristics of a villain as he found them to relate to the courtroom, those being that they are: Powerful, Intelligent, Immoral, Deceptive, and an Individual (not a collective or an entity). Michael and Malorie go on to talk more about the immorality of these villains and the selfish quality that they portray, while also pointing out that these people are not typically evil just for the sake of being evil (like in some movies), but rather are just willing to risk others for the sake of their own gains. Again, it’s not that they actively set out to kill someone that adds to their guilt, but rather the act of knowing something is wrong and then doing it any way, also known as conscious indifference, or as Malorie points it out, as a selfish quality to such villains.

Why is it so important to make the villain an individual versus a company or a collective? Michael explains that we just haven’t been programed in our upbringing to see the villain as a corporation or collective and therefore it doesn’t translate as well into the courtroom. Corporations are not actual “people” and thereby do not have emotions or individual thoughts, again making it hard for them to take on the responsibility for making a decision. So, if you can find the person that made the decision, who knowingly endangered the public, it becomes so much more impactful to a jury, especially when that person is powerful, intelligent, deceptive, and immoral.

The focus shifts from heroes and villains to what role you, as an attorney, and your client (the plaintiff) play in the typical courtroom story, to which Michael sees the plaintiff as the survivor or the one who needs rescuing by the jury, and the attorney as the ones guiding the jury to the truth…like a courtroom Yoda. As a part of that Yoda-like role, Malorie and Michael discuss the need to stay calm and collected when dealing with people who are trying to be deceptive and allowing yourself to place the trust in the jury to see things for what they are and that they will do the right thing. Michael goes on to point out that going into the courtroom without that trust in the jury or a suspicion that they may not do the right thing, will almost always do more harm than good to your case. It will show unconsciously in your body language, tone of voice, and you will have a disconnect with the jurors. Michael also credits Joe Fried and Michael Leizerman on helping him to understand that concept as well.

This TLN Table Talk continues with vital conversations on: how you structure a story for a trial where the jury can come to their own conclusions about the villain on their own so not to “tell them what to think;” why it is less impactful to accuse someone of being deceptive, versus exposing it; being aware of the other stories being told in the courtroom so not to seem like you’re beating up the defense and inadvertently become the villain yourself; along with many other real-life, and some fictional, stories to illustrate Michael and Malorie’s insights. Clearly topics they both have a lot of experience with and knowledge that any attorney can find helpful.

 

19 – Malorie Peacock – Trial Tips: Voir Dire, Visuals, and Technology

Every month, our podcast receives questions from our listeners (which we love by the way, keep them coming) and we take the time to respond to each individually. After 8 months of being on the air, we thought it might be fun and valuable to dedicate an episode to reflect and respond to some of these questions in a new series we’re calling “TLN Table Talk.” In this episode of Trial Lawyer Nation, sought-after trial lawyer and fellow partner at Cowen | Rodriguez | Peacock, Malorie Peacock, flips the script and puts Michael in the “hot seat” for an open discussion to answers questions from our listeners.

Malorie digs right in with a note from a listener that asks – “Knowing that we all need to try more cases to get better, and sometimes you just can’t get to trial for one reason or another, how do you practice for the big moment of going to trial?” Michael reveals how he personally prepares for each trial and his approach toward different types of cases and jurors, along with his thoughts on prepared scripts. He goes on to share outstanding insights about planning and practicing for voir dire, where you don’t know what the jury panel is going to say; and allowing the truth to be acknowledged without letting it throw you off your intended path. Interestingly enough, Michael’s use of pizza and beer to get a deeper understanding of a case, while simple in practice, can also be incredibly useful in the courtroom. Michael also opens up about his rekindled respect for inclusive voir dire with a recent example of a case that turned a $125k offer into a $1.25M verdict, seemingly built in voir dire, before any evidence was ever discussed.

From there, Malorie talks with Michael about the firm’s strategy in trying most cases in pairs and asks him why he believes it’s better. His answer is perhaps not what you might expect, and the discussion shifts toward courtroom perceptions. Michael and Malorie both agree that every perception matters: from how you dress, to how you interact with your staff, to how people see you drive away in the parking lot. The same goes for your client too! Both also agree that understanding visual communication is extremely important as a trial lawyer.

Trial technology seems to be a hot topic for our listeners with all kinds of questions around what types we use, how we utilize them, and the thoughts around why we use them (or not). Michael is quick to point out that we all need to remember the purpose of the tech and the need to tailor the tech to the case, so you don’t look too slick when the other side brings in a manila folder and a legal pad. He does recommend that if the courtroom, and your budget, allows, there are some specific pieces of technology that are far better in his opinion in helping jurors understand pieces of evidence, so long as you are comfortable with it and prepared to proceed when it doesn’t work.

Michael and Malorie close the conversation in talking through strategies on figuring out how much money to ask a jury for and how to actually ask for it, the details of which you’ll have to listen to learn. Trial Lawyer Nation plans to do more “Table Talks” in the future as this podcast has always been about inclusive learning for all in our industry, which includes learning from each other! Please keep submitting your questions, comments, and topic suggestions to podcast@triallawyernation.com; and be sure to like, share, and subscribe to get the latest from the Trial Lawyer Nation podcast!

For more information about Michael Cowen, go here.

For more information about Malorie Peacock, go here.

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