michael cowen

21 – Sonia Rodriguez – Winning (or Losing) a Case in Deposition

With overwhelmingly positive feedback from our listeners, TLN Table Talk is back again! This time featuring fellow partner at Cowen | Rodriguez | Peacock, Sonia Rodriguez, for a discussion mainly focused on how to win (or lose) a case in deposition.

Michael is quick to note that many cases tend to settle before going to trial, making depositions an integral part of the process. Oftentimes it comes down to knowing the documents better than the defense attorneys while also knowing the right documents to order, which in many cases the defense may not have. It can also come down to a witness’s ability to know and articulate the truth in a deposition, which is frequently a direct reflection on those who have helped to prepare the witness (defense or plaintiff).

So how do Michael and Sonia prepare for depositions? Sonia explains her strategy of always looking back on the jury charge to see what exactly she is trying to gain from a witness, scour the defense record from production to find nuggets of useful information, dig into the foot notes, fine print, and back of pages to find what others might miss. She has also found social media to be useful to learn as much as you can on the person being deposed including who their friends and other contacts are, companies they’ve worked for, and digging in to find info on company manuals or other ways to authenticate them as an authority coming from a witness. Michael, on the other hand, points out the importance of networking and collaborating with other plaintiff’s lawyers as “we’re good at getting things and sharing information” such as prior admissions, reports, or testimony. There’s likely nothing more embarrassing for a witness, especially paid ones, than to be cross-examined with contradictory testimony they gave in the past. Sonia, who recently had a deposition with a defense doctor, shares how his past testimony was the exact opposite of what he was testifying to in her case, which obviously played to her favor.

When it comes to the right length of a deposition, Sonia shares her wish to someday be able to take a short depo, but currently has her attention to detail and thoroughness to “blame” for the style of her depositions, one which sometimes drives opposing counsel mad. She tends to feel unsatisfied leaving a depo if she hasn’t covered a lot of ground, knowing the jury will likely not hear most of it. She has also found that many times when she’s taking a deposition, she’s not just doing a trial depo of a witness, but also trying to prepare in advance for a summary judgement response and how they can also be helpful to lay the ground work for what she might need from another witness. In contrast, Michael prides himself on short but thorough depositions stating how it really depends on the witness and subject matter. He also admits the danger of taking shorter depositions in relation to “having a beginner’s mind” vs. the “curse of knowledge” where you might already know something, the defense already knows it, and the defense witness knows it, but the jury does not, and could lead to talking over the jury with jargon they might not understand. Both agree 100% no matter how you approach a deposition, you need to be actively engaged in listening to the responses and not just running down questions on an outline where you would likely miss the truly important parts of what the witness is saying, or not saying, which could make your case.

The conversation shifts to a lively debate heard in many firms of weighing the idea of “going for the kill” in the deposition vs. saving things for trial when you know the witness will be there in person. With different experiences from both Sonia and Michael prior to them partnering, each brings a unique perspective to the table from their mentors as well as from their personal experiences. Of course they agree these tactics both have their place, but Michael also brings up the point how oftentimes with expert witnesses, if they don’t know something at a deposition, they tend to come to trial more prepared with a response.

Michael and Sonia jam pack the second half of their discussion with everything from preparing their own clients for deposition, video-taping depositions, deposing the other side’s experts, guiding medical experts to slow down their testimony while not losing the jury with industry terminology, and exceptions to all of the above.

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!

Find out more about Michael Cowen here.

Find out more about Sonia Rodriguez here.

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.

18 – Jude Basile – A Trial Lawyer’s Favorite 2 Words: All Rise

In this episode of Trial Lawyer Nation, Michael Cowen sits down with well-established and extremely accomplished trial lawyer, Jude Basile, from San Luis Obispo, CA. Growing up, Jude knew early on he had a tremendous desire to become a trial lawyer, a profession he describes as one where he can talk to ordinary people about what’s right and what’s wrong.

Jude’s passion for jury trials is palpable from the very beginning of his conversation with Michael where he describes the evolution of how our “enemies” approach us and the power of the jury. He talks about the numerous delay tactics to drag things out, throw broad nets in discovery, and other roadblocks to stop us from getting to trial. And he reveals the power a jury has to level the playing field, which is getting hard to hold on to. In fact, if there was one thing he could change, he says it would be some legislative enactment where we could limit those obstacles so we could have easier access to a jury, because it seems like the only cases which can go to jury now are very big and very expensive cases. This is likely why his two favorite words are “all rise.” He goes on to describe how the 7th amendment has seemingly evolved over the years into the right to present a case to an arbitrator, or to an adjuster, or a mediator. Of course, there are cases that reach a jury but there is a tremendous fight to get to a jury trial, in his experience. Michael notes this fight also tests your determination and desire to get there, because not everyone has it and there are different forces at work with each case.

Michael asks Jude his advice for aspiring trial lawyers on the things to be done to develop trial skills. Like many great attorneys will tell anyone looking to become a trial lawyer, continuous education is important (as he notes several of the great authors of the books in his office such as Moe Levine, Jim Perdue, Mark Mandell, and others), but there is no substitute for trial experience. Jude recommends starting by working with a local prosecutor or public defender’s office. He suggests if you can try a DUI case you can likely try any type of case: they have direct and circumstantial evidence, eye witness testimony, expert testimony, breathalyzers and other scientific equipment, chain of custody, blood samples, and you can learn all the evidentiary components in a case.

Trial lawyers are great story tellers to which Michael explores how to find the right story to tell. Described as the fundamental understanding in which all communication is a “story,” Jude explains the importance of understanding our own story first before trying to understand the other side’s story. He recalls a trial where understanding his own story helped him essentially win a case during jury selection after a potential juror questioned if Jude was “in it for the money.” His answer was not only truthful and heartfelt, but also brilliant, proving that sometimes the most difficult moments during a trial allow the most powerful things happen. Michael also points out when you deny truths, even when they are inconvenient, you lose credibility. Jude goes on to share another story about a case he is looking forward to trying in the coming months where the impact of money is of little importance versus the non-monetary considerations important to be met. Both Michael and Jude agree sometimes there are factors more important than money such as education, or the impact of change which can lead a case in the direction of betterment of everyone, which make them truly satisfying cases.

Michael and Jude conclude their conversation with a discussion on the fears (and successes) of turning down cases. This is a hard practice to implement, but the benefits can be surprisingly tremendous toward living the life you want to live… a habit few understand and even fewer are successfully able to implement.

For more information about Jude Basile, visit: http://www.basilelaw.com/

Jude Basile has been instrumental in developing and presenting compelling case stories to move juries to do right. His practice is based out of San Luis Obispo California. He concentrates on working with other lawyers, throughout the state, as lead trial counsel, to continue to share, develop and expand the method of simple, yet powerful truth telling.

He has received 6 Outstanding Trial Lawyer awards from Consumer Attorneys of San Diego, including Trial Lawyer of the Year. He has been named California Central Coast Trial Lawyer of the year 3 times. He is past president of the Trial Lawyers College having been personally selected by legendary trial lawyer Gerry Spence.

His verdicts include 7 and 8 Ligure results against corporations and governmental entities, on behalf of individuals and families. He is an invited member of the prestigious Inner Circle of Advocates limited to 100 of the best plaintiff trial lawyers in the nation. He belongs to the exclusive membership of the Black War Bonnet Society, which stands for high achievement and discipline in the pursuit of physical mental and spiritual wellness.

He is a frequent, invited presenter to Trial Lawyer and Bar Organizations throughout the country.

He has practiced trial law since 1982. A member of the United States Supreme Court, California, Georgia and Federal bars.

He lives on the doorstep to Big Sur California with his wife and 3 children and enjoys hiking, and contemplation in the Coastal Mountains.

For more information about Jude Basile, visit: http://www.basilelaw.com/

02 – Joe Fried – From 0 to 60 as a Subject Matter Expert

In this episode of Trial Lawyer Nation, Michael talks with acclaimed commercial motor vehicle trial attorney, Joe Fried, about his journey of going from 0 to 60 in becoming a trucking industry subject matter expert.

Joe’s calling to enter the field came from some unexpected sources as he explains to Michael the barrage of signs that led him to become a subject matter expert after finishing a large book of business against the Ford Motor Company. Joe describes the evolution of his role as a lawyer and the number one fear that was used as a driving force in his success.

On a larger scale, Joe encourages others to think beyond the boundaries of a case to serve a greater good by doing what’s right not only for the families affected but also what’s right for the industry and the families that can avoid having the same happen to them.

Throughout the podcast, the topic of hyper-specialization is explained both from the positive perspectives of becoming the only person who understands such a narrow subject, but also the trade-offs and sacrifices that need to be made in doing so with your practice. Joe also emphasizes the importance of inclusivity in the industry and using that mantra as a resource instead of something to be afraid of as he gives listeners a generous offer.

Background on Joseph A. Fried:

Joe Fried is one of only a few lawyers in America who limits his legal practice to handling truck and other commercial motor vehicle crash cases.  Based out of Atlanta Georgia, Joe has handled commercial motor vehicle crash cases in over 30 States and has helped recover more than $500 million for clients. He holds several record settlements and verdict.

When he is not actually handling cases, Joe is writing about and teaching other lawyers how to get the best results possible in commercial motor vehicle crash cases.  He has authored books, book chapters, peer reviewed articles and a Trial Guides DVD specific to this unique field and has given over 250 presentations around the Country specific to this field.

Joe is a nationally recognized leader in trucking litigation.  He is the founder and Founding Director of the Academy of Truck Accident Attorneys, immediate past chair of the Chair of the American Association of Justice Trucking Litigation Group, and President of the National Trial Lawyers Trucking Division.

Joe brings a diverse background to each case.  He is a former judge and police officer, has real world training in accident investigation and reconstruction, physics, engineering, and human factors.  At the same time, Joe has hundreds of hours of training in psychodrama, neurolinguistics and story development and is known for his unique ability to find and tell the compelling human story that underlies each of his cases.

For more on Joe Fried visit https://www.frg-law.com/the-firm/joseph-a-fried/

01 – Joshua Karton – Turning off the “Act” in the Courtroom

In this episode of Trial Lawyer Nation, Joshua Karton joins Michael for an introspective discussion on trial psychology and communication.

Joshua’s perspectives on turning off the “act” in a courtroom and getting back to just being (real) is deep and enlightening to listeners at all levels of the industry. The idea of “getting out of your own head” is turned upside down as Joshua challenges attorneys to embrace their role not as one there to protect themselves or their own ego, but rather as someone who is there to defend and protect their client and thereby connect with jurors who could see themselves in the position of the client one day and wanting the same protection.

Joshua shares what he believes allows people to trust through using everything you’ve got and not leaving anything in reserve. Joshua also breaks down the concept of not using negative objectives (such as not wanting to bore the jury, not wanting to piss off the judge, not wanting to embarrass yourself) that can’t be done, and instead committing to objectives that are incompatible with the negative. Michael shares an application of this concept through the evolution of his own practice and how it’s propelled his success and allowed him to alleviate many of the stresses that tend to plague and follow most lawyers.

Joshua expounds on the power of goodness and how the recent political landscape has challenged this approach of connecting with jurors and how deep the need to be right has become a critical hurdle in the courtroom. Michael takes these ideas a step further by discussing how they have affected even the validity of eye witness testimony and the influences of psychodrama sessions.  Self-awareness weaves its way throughout the podcast as a main theme that bolsters the success of attorneys in the right frame of mind and holds back others.

The episode concludes with a thoughtful discussion on the lens jurors see things through and how being aware of how you are setting yourself up to be perceived can change dramatically based on a single choice all attorneys have control over.

Background on Joshua Karton:

JOSHUA KARTON, president of Communication Arts, specializes in the application of the communication techniques of theatre/film/television to the art of trial advocacy. He serves on the faculties and develops curriculum for AAJ, the Gerry Spence Trial Lawyer’s College, NITA, the JAG Corps, ABA, NACDL, National Criminal Defense College, Loyola and California Western Schools of Law, state t.l.a.’s and criminal defense associations, as well as maintaining a professional practice of individual case consultation and witness preparation. Thirty years of work in this field culminated in his preparation of the winning oral argument to the United States Supreme Court in Hamdan v Rumsfeld, and the 2016 Lifetime Achievement Award for Excellence in Advocacy from Stetson University College of Law’s Center for Excellence in Advocacy. He co-authored Theater for Trial, released by Trial Guides November 1, 2017.

For more on Joshua Karton visit https://www.trialguides.com/authors/joshua-karton/

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