Michael Cowen

Michael Cowen specializes in personal injury cases involving trucking, commercial motor vehicle, catastrophic injury, oil field accidents as well as product liability,

36 – David Ball – Finding the Alignment – Understanding What Jurors Want

In this episode of Trial Lawyer Nation, Michael Cowen sits down with a special guest, Dr. David Ball. David is a trial consultant, speaker, and one of the “fathers” of the book “The Reptile in the MIST.” His name and his books have been mentioned on numerous episodes not only Michael Cowen, but many of our Trial Lawyer Nation guests. With several books of David’s to choose from, Michael can’t help but note how “David Ball on Damages 3” has been very useful in helping him craft opening statements and serving as an outline for many trials. He also highly recommends all trial lawyers have this book within arms-reach of their desk (more on this later in the episode). And for those trial lawyers who don’t know David personally, it is important to also note he has probably done more good for trial lawyers than anyone else in the industry.

Having started down his path many years ago, David’s mission of trying to help trial attorneys make complicated things clear, originally came from his background in theatre, where much of what he had learned in theatre has been extremely useful for trial lawyers. In fact, working with a more classical repertoire theatre with works from Shakespeare, he wondered how he could make those plays crystal clear for the audience who is listening to it and how it might relate to the legal industry. His conclusion? “I realized lawyers have 2 problems: 1. They’re boring as hell and 2. They’re not very clear about what they’re talking about.” Today David describes what he does as helping to strategize cases to maximize the principles of what we’ve learned in the neurosciences and apply it to how people really make conclusions, how decisions are made, how we know things, and how logic has very little to do with any of it. Essentially, working as a bridge between the neurosciences and the courtroom.

So, how do we get jurors to see things the way we want them to? Logic doesn’t deal with the law school version of tell them your case, they’ll understand your case, and if you’re in the right, they’ll give your client a just verdict. Justice has nothing to do with how people make decisions. How do we translate that into things you’re allowed to do in trial and in a way that will motivate jurors to do what we want them to do? David says, people don’t make their decisions on the basis of “justice,” but rather justice is simply the result of something you think you want. He goes on to explain why trial lawyers need to look at what they’ve got and then put this “stew” together into something someone REALLY wants, for it to end the way we want it to. The whole process of trial, as David describes it, is an alignment.

David continues to describe this alignment by combining solid research along with all the things he’s learned in theatre about what real storytelling is. The fundamental thing about The Reptile, he describes, is by getting the jurors to want themselves to be safe and live in a safe world, that becomes their want. He also points out that in order to get their want, he also needs to get his client’s “want,” which is money. Michael adds to this by stating the only power the jury has in the courtroom is to give or deny money in the case. David goes on to say that if the attorney is presenting their case well, jurors will understand if they give a good verdict it will make their world safer, but also giving a bad verdict will make their world a more dangerous place than it is now. In other words, once the jurors walk into the courtroom, they will be walking out with either a safer world or a more dangerous world, but it will never be the same way as when they walked in. Furthermore, David explains when you ask a client why they are doing the case, not only will they say it’s because they need the money (compensation) but they also want to make sure this won’t happen to anyone else. To expand on his point, David shares an example from his early years watching the trial of a case involving a wealthy woman in North Carolina, who was rear-ended and clearly didn’t need the compensation from the case. The answer the woman gave him when he asked her why she was going through with the case, even though it was painful, is priceless. And it helps us understand why even the smallest cases are important in making the world a safer place. David also talks about the points he describes to the jurors regarding their potential complicities in what they allow the defense to get away with and the affects it will have on others who face the same situations in the future.

Which leads Michael to pose the question, “how do we figure out what the jurors want?” David goes through a laundry list of things we know about what jurors want, including through focus groups and the neurosciences what motivates us to want something. Boiled down to its core, David explains this with a great example of teenage boys as jurors, which will shock you and make complete sense. And he wraps up with describing the fundamental drives that keep us alive, as well as the impact of disrespect and humiliation.

The topic shifts at one point to talk about when the other side brings in what they call an “independent medical examiner,” three lies in one person’s title, David jokes (sort of). Rather than disagreeing with their conclusion, David proposes you show what they did wrong in their methodology, to show they purposely arrived at the wrong conclusion. He goes on to show how the right types of questions posed to your own experts can further point out the flaws in their conclusions without the need to call the defense’s independent expert a liar. Michael also adds how it can be very effective to discuss the idea of a defense’s witness as “independent,” when they’ve been picked and paid for by the defense, in helping the jury not feel like their intelligence is being disrespected. David continues to talk about the difference between describing the defense as someone who may lie in order to protect themselves vs. someone who is disrespecting the jury by insulting their intelligence and the impact this can have on a jury. He goes on to point out how it is analogous to the difference between a doctor lying to a patient, where the patient might be being disrespected but the juror is not vs. a doctor getting on the witness stand and deliberately misleads the jury, and as such, disrespecting them.

One of the things David describes as loving about what he’s been able to do, is when he started writing his first theatre for trial book, there was nothing. Nobody was doing anything in the way of teaching major overall strategy and there were certainly no books on damages or doing it. He’d like to think that the Damages book helped give rise to this whole other industry. In one hand he should hate it, he created all his own competitors, and on the other hand it is the greatest feeling in the world for him.

David also suggests for every attorney to page through their Damages 3 book on a consistent basis to examine it through the lens of the case you’re working on currently, in order to see things you never saw before. He suggests this, mainly because so much information is lost after seminars and reading other books, because the only things you likely retain are the things which pertain to the case you’re working on right now.

Michael and David move on to the topic of the principles of persuasion and how David has brought his theatre experience into the courtroom. Revisiting the idea of “real storytelling,” David talks through the actual history of storytelling and how it has evolved over time. He points out why you have to make people want to hear the next part of the story, AKA “narrative thrust,” using “dramatic tension” to create tension between this moment and the next moment, and the next moment could be an hour away or two minutes away. Crafting what David describes as “forwards” where everyone sees the anticipated moment in the story and wants to hear it for themselves. He also points out these forwards are very case specific, very particular to the story, and it is a relatively sophisticated thing to do for people who are not natural born storytellers, but you can learn to do it. And he describes why the context in storytelling and where you put pieces of information in the story matter significantly to shaping the story.

Michael and David touch briefly on social media and a trial lawyer’s first amendment right, where it is important to note David believes if you are a trial lawyer, you have accepted a fiduciary responsibility to your client which trumps your ability to have free speech. He also believes society has become so divisive these days on social media and now face to face, where we now have the challenge of bringing both sides together to fight for an even greater cause. David uses the example of 2 people fighting, but when someone comes in and tries to do harm to them, they will both unite because they are both in danger and need each other to save themselves. The heart of such a scenario, is the aim of every trial lawyer when working with diverse juries.

Digging deeper into David’s theatre background, Michael talks about how he has yet to see a trial lawyer facing a potentially multi-million-dollar trial rehearse as much as a community theatre where 30 people may be in the audience. David shares how being a trial lawyer is the only area of public performance where they don’t rehearse. He goes on to suggest you cannot fully rehearse on your own and, a full rehearsal, means a dress rehearsal. In the same way you cannot have football practice without eventually having a scrimmage with another side. When you are on the stage, you have a million other things on your mind, you’re being “Hamlet.” When you’re a lawyer, you’ve got your peers, the judge, and the jury all watching you. It distracts your attention from where it needs to be, so you seem very nervous. You cannot be a leader of human beings when you’re very nervous. And the best lawyers are leaders of human beings.

The conversation ends with a discussion on charisma in the courtroom as well as David’s important work in the criminal defense industry. And after spending this episode with David, it’s clear to see why so many trial lawyers look to him as a powerhouse in the industry.

 

BACKGROUND

David Ball, who wrote trial advocacy’s best-selling strategy bookDavid Ball on Damagesis a litigation researcher and strategist with North Carolina’s Malekpour & Ball Consulting (JuryWatch, Inc.). He is the nation’s most influential jury consultant, communications expert, and advocacy teacher. His training is in science, engineering, and small-group communications, and he is a 30-year veteran of the professional theater.

Dr. Ball and his partner, lawyer/consultant Artemis Malekpour (artemis@consultmmb.com), consult on civil and criminal cases across the country. They are routinely credited with turning the most difficult cases into significant victories. They are the nation’s only trial consultants qualified to safely and comprehensively guide attorneys with Reptilian, David Ball on Damages, and David Ball on Criminal Defense methods and strategy. Their hundreds of brainstorming sessions – “WorkDays” – have become the gold standard for case-strategy development.

In addition to David Ball on Damages, Dr. Ball’s other landmark advocacy books include Theater Tips & Strategies for Jury Trials, Reptile (with Don Keenan), Theater for Trial (with Joshua Karton), Reptile in the MIST, and David Ball on Criminal Defense.

Dr. Ball has taught law students at North Carolina, Wake Forest, Pittsburgh, Minnesota, Roger

Williams, Loyola, and Campbell schools of law, and at Duke Law as Senior Lecturer. He’s an award-winning teacher for the North Carolina Advocates for Justice and the American Association for Justice’s National College of Advocacy. He has long been among the nation’s most in-demand of CLE speakers. His favorite job was taxi driver in the 1970s in Stamford, CT, and his Daddy was a Catskill Mountains bootlegger during Prohibition.

 

Dr. Ball is also a pioneer in adapting film and theater methods into trial techniques. His theater/film students have won Oscars, Obies, Tonies, and Emmies; his scripts have been staged at professional theaters off-Broadway, throughout North America, and overseas. He helped to lead the Guthrie Theater, as well as Carnegie-Mellon University’s renowned theater conservatory and, as Chair, Duke University’s Drama Department. His best-selling film and theater training book, Backwards and Forwards, has been the field’s standard every year since 1984, and is now in uses by trail lawyers as well. His crossover books, Theater Tips and Strategies for Jury Trials along with the new Theater for Trial, are the standards for the use of film and theater techniques in litigation.

Dr. Ball also wrote the cult classic film Hard Rock Zombies, though he made up for it by writing Swamp Outlaw, a novel about Civil War Era Lumbee hero Henry Berry Lowery, now under option for a motion picture. (TV viewers: Dr. Ball and Dr. Bull deny each other’s existence.)

 

RESOURCES

Reptile: The 2009 Manual of the Plaintiff’s Revolution
https://www.amazon.com/Reptile-2009-Manual-Plaintiffs-Revolution/dp/0977442551

34 – Sonia Rodriguez – Hindsight in the PI World

1 Stars2 Stars3 Stars4 Stars5 Stars (10 votes, average: 5.00 out of 5)
Loading...

In this episode of Trial Lawyer Nation, Michael Cowen sits down with Cowen | Rodriguez | Peacock partner, Sonia Rodriguez, for another installment of TLN Table Talk to answer the questions of our listeners. This episode focuses on advice for our up-and-coming personal injury attorneys on the things we know now and wishes we knew earlier in our careers.

Starting right off in the broad sense of the industry, we start with a question about what advice would we give to a lawyer who is in the first 2 years of practice. Learning the hard way, Sonia states why it is critical for a successful personal injury law practice to understand the difference between a PI practice and a typical business practice when you are talking to bankers and lenders. The discussions you’ll have with bankers and lenders about lines of credit and assets in regards to your practice can sound like a foreign language to certain bankers, so you really need to find a bank that knows the PI practice and knows that many times the assets you have are going to be intangible, and are more likely to be in your file cabinet or on your server. Michael also points out how the banking regulations have also tightened up in recent years where it has become harder for PI lawyers to borrow against their case list. To this point, Sonia suggests once you have a few years under your belt, you should start saving/hoarding your money so you can borrow against your own investments and savings when you want to. They both agree once you hit your first big case, you don’t want to start living like that has become your new lifestyle every year or every month and you need to live below your means for a long time. Michael recalls avoiding the temptation to go buy the expensive Mercedes and shares how his first house was only $67,000, which was in stark contrast to other lawyers who went out and bought big houses and could barely pay their credit cards or make it month to month. It was with this foresight and now shared knowledge, that Michael reveals his early financial habits have led him to build the successful practice he has today.

Providing additional advice for PI lawyers just starting out, Michael weighs the pros and cons of gaining experience by starting in a district attorney’s office (hint – it’s not advised…and for good reason). He goes on to suggest several much better ways to gain experience and learn from other attorney’s experience, this podcast being one of them, which will prove to be more advantageous in building a solid foundation for a personal injury practice. Thinking from the other end of the spectrum, Sonia also offers advice regarding business relationships and how they are bound to change over time and shares the key factors you need to consider before entering into a partnership, regardless of the current or past relationships status. A lesson the majority of seasoned attorneys would likely agree with, hindsight being 20/20. Michael, being one of them, recounts one of the things he knows now that he wishes he knew earlier, and how he wishes he had spent a seemingly small amount of money early on to hire a lawyer to draft his agreements with other lawyers. Being lawyers, he says, “we think we can do it ourselves,” and in the process, we end up overlooking the holes in an agreement and only looking at it through rose-colored glasses as if nothing will ever change in the relationship. Michael reveals, in his own hindsight, the amount of money he’s paid out on legal fees to draft things for him now, has turned out to be less than 1% of what he’s paying people that he wouldn’t have had to pay had he had those agreements in place. LESS THAN 1%!

Sonia transitions by discussing the amount of stress brought on day-to-day in this industry. Our bodies were never designed to handle these amounts of mental or physical stress that can come with a heavy litigation practice, she says, and on the plaintiff’s side, it can also be very easy to become emotionally invested in our client’s cases. As a trial lawyer, you need to find a mechanism for an outlet, such as exercise, meditation (if it works for you), or even journaling, in order to maintain your mental health. Michael adds that you need to find a balance in order to internalize and feel your client’s pain without it taking you over. The Harvard Business Review published a great article about the stress and anxiety of being a perfectionist, as we tend to do in this line of work which also lays out several options for mental self-care.

Michael continues to state, as he has on many episodes of this show, to get out there and try more cases. There is never a shortage of cases to be tried in any firm. And no one will remember the cases you lose as you gain experience or even years into your practice for that matter. He goes on to say that you do not suffer a reputational hit for losing a trial and how he has actually lost more cases than some people have ever tried, but still has tons of referrals coming in because attorneys remember the ones he’s won.

Throughout the rest of this episode, Michael and Sonia discuss topics like: the power of saying “NO,” the importance of reputation; how to use a cost/benefit analysis to determine the right cases to take on; their opinions on paying for online profiles with various legal organizations, what to do in discovery when you think the other side is hiding something from you; how to (and more so, how not to) attract leads online; tricks to leveraging social media and pitfalls to avoid when using it; and many others along the way.

These Table Talk episodes could not happen without the interaction and questions submitted by our listeners. We are eternally grateful and encourage you to continue to send us your thoughts, ideas, and questions as we love sharing our experiences with them.

31 – Malorie Peacock – Proven Techniques for Proving Damages

1 Stars2 Stars3 Stars4 Stars5 Stars (6 votes, average: 4.83 out of 5)
Loading...

In this Table Talk episode of Trial Lawyer Nation, Michael Cowen sits down with Cowen | Rodriguez | Peacock partner, Malorie Peacock, to answer the questions of our listeners. This show focuses on how to prove your client’s harms and losses at trial.

The first listener question is regarding the idea of whether 3X the medical bills is typically what you use to determine damages or does that only apply in certain cases? Michael recalls being taught the 3X “rule of thumb” back when he was first starting as a trial lawyer, but since then, no longer does for several reasons. First and foremost, times have changed along with insurance company practices. If an insurance company or defense attorney does start to talk to you about 3X medical bills, it’s likely because your case is worth a lot more than that. Instead, Michael focuses on what a jury might do when they look at each element of damage (pain, mental anguish, impairment, or whatever the measure of damage is in a particular state) individually and determine what they feel compelled to put in each blank. That, paired with what Michael calls “piss off factors” based on things the defense might do to compel a juror to give full justice for, becomes a number he’d like to keep as high as possible. Of course, he also takes into account whether his client is for some reason not likable or the defense is super likable, which can also affect the jury’s motivation in an adverse way for his case. Malorie also brings up another important note on the effects of jurors taking into consideration the percentage of fault even though they are instructed not to do so. To which Michael elaborates a little more on how to potentially work the messaging of that to the jury.

The next question by our listeners is how do you work up damages, especially in a smaller case that doesn’t warrant bringing in experts or producing lots of exhibits? Michael starts to answer this question by clarifying that experts generally do not help work up damages, but rather help to prove calculations on future medical expenses or a vocational loss. Having said that, with regard to the human and non-economic damages, he believes people who come in and talk about your client, how they were before, what they went through, and what they are like now can have the biggest impact. This also doesn’t cost any money toward the case. It does, however, take a lot of time in order to visit with these people to talk through what they know of the client before, during, and after, as well as collect photos or videos showing the client in a different state prior to suffering damages, etc. Michael discusses how this approach, even by taking the time to meet with people and learning your client’s story better, will make you more authentic in the courtroom which can have a profound impact on your case. Malorie sums this point up reminding us that all of our clients are more than just their injuries.

The next question they explore is regarding a wrongful death case without economic damages, which Malorie takes the reins on and starts with conveying just how hard it is to put a number on life when no amount of money will ever replace someone’s loved one. She goes on to elaborate that although you can do focus groups, they are not truly predictive. It will always boil down to the 12 jurors you get on any specific day in court who will ultimately put that number on a case. Michael adds that liability is what really tends to drive the number in wrongful death cases and it sometimes becomes very hard to have a conversation with the surviving family member(s) on the difference in the value of life versus the value of a case. He also shares how going to trial in a death case is extremely tough for the family as they relive one of the most painful events in their lives, which places a real responsibility on us as lawyers to make sure we are doing the right thing. Whether that means turning down an offer that is not sufficient to go to trial to fight for more and making an informed choice while understanding upfront the process and pain that will likely come with going through the details all over again. Malorie also describes the importance of knowing your client (a common theme throughout this episode) and understanding their goals, hopes, and struggles for their future to be able to help guide them through the conversation about money.

Proving grief is another topic Michael and Malorie explore with the belief from some jurors that everyone dies at some point. They both agree that there is a definite difference between dying when it’s time and dying when it’s not your time because of a tragic incident. Michael also points out the balancing act that occurs when you don’t want to “torture” your client and make them cry by bringing up all the pain and suffering they encounter now that their loved one is no longer here vs. focusing on the hopes that were and the plans for the future that have now changed because of the actions of someone else. He also points out that this is a good time to utilize experts like grief counselors and let them talk about the pain and suffering your client is, and will, experience due to the loss as well as the grieving process and the natural cycle of grieving to help paint an appropriate picture for the jury. They also give several other examples of ways to express the pain and loss without having to pull tears out of the surviving family members directly.

Michael and Malorie continue their abundance mentality by sharing so much great information in this episode on topics like when to submit and when not to submit a medical bill toward damages; avoiding the status quo and navigating a case to motivate a jury to give your client the justice they deserve; where do your client’s harms and losses fit into the greater story of the trial; an ideal “3 act” trial story through the juror’s eyes; how not to present your client’s harms and losses in a vacuum; how to get your client’s actual story (hint – it’s not what you might think); tips on utilizing psychodramatic methods; expediting the process of spending time with your client to understand their story; how Pareto’s Law can be applied to your docket; and so much more.

These Table Talk episodes could not happen without the interaction and questions that are submitted by our listeners. We are eternally grateful for and encourage you to continue to send us your thoughts, ideas, and questions as we love sharing our experiences with all of you.

28 – Malorie Peacock – Storytelling in the Courtroom

1 Stars2 Stars3 Stars4 Stars5 Stars (4 votes, average: 5.00 out of 5)
Loading...

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 storytelling 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 programmed to think in story, going all the way back to the campfire 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 anyway, 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 programmed 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 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, a 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.

 

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

1 Stars2 Stars3 Stars4 Stars5 Stars (1 votes, average: 5.00 out of 5)
Loading...

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 a 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 footnotes, 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 judgment response and how they can also be helpful to lay the groundwork 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, videotaping 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.

Scroll to top Secured By miniOrange