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109 – Malorie Peacock – Practical Procedures: Creation, Education & Implementation

On this episode of the Trial Lawyer Nation podcast, Michael is joined once again by his partner Malorie Peacock to discuss their firm’s procedures and how they implemented them. They’ll cover their firm’s journey with procedures, what to create procedures on, how to create, implement, and train on your procedures, how to achieve buy-in, and Patrick Lencioni’s Working Genius Model.

Michael and Malorie begin the episode with a look at their firm’s journey with procedures and why they felt the need to share it on the podcast. Michael shares that he drew inspiration from the book “The E-Myth Revisited” by Michael Gerber, which asserts that every business should be run like a McDonalds, and everything that can be systematized, should be. Having systems and training (and re-training) on them serves to empower your employees, ensures everyone is doing things the way you want them done, and creates a safety net so if someone leaves the firm, someone else can step in and take over where that employee left off.

Malorie then asks Michael a follow-up question- What kinds of things should you have procedures on, and what kinds of things should be left to the discretion of the person doing the job? Michaels answers simply that you need to be realistic. While he would love having a procedure for every little task, there isn’t’ enough time in the day and you need to prioritize 1-3 things that what will “give you the best bang for the buck.” Once you implement those 1-3 procedures, you can move on to a different 1-3.

If you’re feeling overwhelmed at the thought of having to practice law, run a business, and write and implement all these procedures, Michael has some good news for you- it doesn’t all have to be done by you. He’s learned that hiring and delegating things like creating, implementing, and training on new procedures to someone he trusts in his office frees him up to do other, more pressing items. Malorie agrees and adds that this is WHY you have these systems in the first place. It allows the owner to be able to take a step back and trust that things still get done the way he or she wants.

Malorie then asks Michael to share an interesting statistic that they discussed over coffee- that only 5% of employees can just figure new things out themselves. The other 95% need to be thoroughly trained and reminded continuously on how to do things the way you want. Your business systems should be designed for the 95%, NOT the 5%. While it can be frustrating to constantly remind your team of how you want things done, Malorie explains how it’s absolutely necessary to do, and if you go into it with the right mindset it takes a lot of the frustration out of it.

Regarding how detailed your procedures need to be, Michael says it really depends on what the job is. The procedure for someone in a filing or scanning role, a typically lower skilled job, will have step-by-step instructions; but the procedure for lawyers to set depos by a certain time will simply have guidelines to follow. Malorie adds that their firm procedures’ level of detail has fluctuated quite a bit, and the key to success is adapting to your firm’s current needs.

Malorie and Michael then take a deeper look at one of their procedures, for each lit team to have a monthly File Review on each case at the firm. They discuss why they have them and how they benefit Michael, then move on to how they hold teams accountable and achieve buy-in.

Achieving buy-in is the tough part. Looking at the big picture, Michael shares his firm’s “mantra” which they recite at the beginning of each meeting. If a team member buys into this mantra, he will do everything in his power to develop and support them. It’s something they look for in the hiring process and are up front on from the beginning, but if someone doesn’t want to buy into this mantra, it doesn’t mean they’re a bad lawyer, but his firm isn’t the right place for them.

Malorie then digs into the micro-level buy-in for each procedure, where they encourage feedback and brainstorm how to make the procedure better. They’ll get some great suggestions from their team, which they sometimes implement into the final procedure. They also make sure to explain the “why” behind each procedure, to make it clear they’re not trying to micro-manage the team or create unnecessary work.

After discussing some things they’ve learned from implementing procedures over the years, Michael brings up an upcoming Patrick Lencioni book on the concept of “The Working Genius Model” with the acronym “WIDGET”- Wonder, Idea, Discernment, Galvanizing, Enablement, and Tenacity. They elaborate on each of these working genius types, share the ones they each have and don’t have, and explain how they filled their team with the other types. The result has been a trusting, high-performing, complete team.

Michael and Malorie end the episode by encouraging listeners to work on building their ideal team and to start creating procedures for their firms. The result will be more joy and a better-performing law firm.

This episode also covers how to create procedures that leave room for creative lawyering, when to get rid of ineffective procedures, why perfection is the enemy of good work, how to incorporate Patrick Lencioni’s Working Genius Model into your firm, and so much more.

101 – Laura Pazin Porter – Pushing Forward: The Journey to Partner

In this episode of the Trial Lawyer Nation podcast, Michael welcomes newly minted partner at Cowen Rodriguez Peacock, Laura Pazin Porter, to the show for the first time to discuss her path to partner.

They begin the episode with a look at who Laura is and her career leading up to joining Cowen Rodriguez Peacock in 2019. Laura shares that she’s originally from Florida, but moved to McAllen, Texas at a young age and has strong South Texas roots. She first moved to San Antonio to attend St. Mary’s School of Law and has lived there ever since.

After graduating law school, Laura started working for acclaimed plaintiff’s lawyer Tom Rhodes, where she stayed until his passing in 2018. While working with Tom, Laura shares how she learned the importance of attention to detail, keeping the momentum going on your cases, and the value of a team approach. She also had the opportunity to work with previous podcast guest Hans Poppe as well as Randi McGinn, who Laura was lucky enough to get to try a case with. Laura shares how she was immediately drawn to Randi’s interaction with the jurors and thoughtful use of visuals.

Michael then asks Laura about the transition and differences between working with Tom Rhodes and working at Cowen Rodriguez Peacock. Laura explains how the team structure was different there, with lawyers sharing a legal assistant and working together on the docket. Here, Laura has learned how to manage a team with an associate, paralegal, and medical coordinator, and has grown a lot in her leadership skills.

“Being the leader that I would want is really what I try to do when I approach a meeting.” – Laura Pazin Porter

In addition to adapting to a new team structure, Laura has had to learn a new area of the law in trucking and commercial vehicle cases. She believes the education she was provided with Cowen Rodriguez Peacock and an excellent, experienced paralegal aided in this transition. She and Michael then discuss how regular lawyering skills, she had already developed, applied in a new area. Michael adds that he believes there’s nothing harder than medical negligence cases, which Laura had lots of experience in when she first came here. In fact, Michael quotes Laura’s past boss, who once said that trucking cases were “nursing homes on wheels” because of the similarities in paperwork and procedure.

Another area where Michael notes Laura has grown is in her ability to make decisions confidently, and he asks if there was anything he and his firm did to help with that. Laura once again emphasizes the education, tools, and skills that the firm provided her. This increased her confidence in herself and made her more confident in her decisions. They discuss the access to JJ Keller trainings for truck drivers, the firm’s weekly Case Valuation roundtables, the yearly Big Rig Boot Camp and more. She also shares that she is grateful for the lawyers who provided her with resources and forms to get started, so she wasn’t starting from scratch.

After a brief look at some of the amazing case values Laura has obtained recently and how she did it, they move on to discuss some of the rules Michael has at his firm, discussed in more detail in this episode with partner Malorie Peacock. Laura shares how these rules may be time consuming, but she has come to learn why they all have a purpose, and she finds herself in a better position to accomplish her goals when they are followed. Michael adds that he has been working a docket again recently, so he’s had to follow his own rules for the first time. He agrees they can be a pain, but that little pain now will save A LOT of pain later.

“The stressed-out brain does not make good decisions.” – Michael Cowen

Circling back to training opportunities, Michael and Laura discuss the long-term value of hiring skilled litigation and trial consultants – you pay them once to work with you on a case, but you have the knowledge they provided you with you in every case going forward. Michael then shares how he is often asked why he spends so much time and money on training, since the lawyers could leave the firm at any time. His philosophy is simple, and he explains it well – he wants to have good lawyers everyone else wants to steal, but for those lawyers to choose to stay.

“I really want a firm that everybody in town is trying to steal our people, every day. I want every lawyer here to be recruited constantly, that every other firm wants them. And then I also want them to not want to leave.” – Michael Cowen

This leads them to discuss how they balance their workloads. While some firms require lawyers to work Saturdays, Michael has a different approach which allows more flexibility, which Laura appreciates. They both agree that sometimes it’s necessary to work late or work weekends but allowing the lawyer to decide what works best for them has led to a much better work life balance for Laura.

They end the episode on a slightly personal note, discussing how they balance their work, spouses, and kids. Laura shares how her and her spouse both have strong work ethics, and it helps them understand each other’s needs. Michael then quotes Randi McGinn, saying that “You can have it all, just not at the same time,” which is his philosophy with this. He’ll work late sometimes, but not all the time. He’ll take long vacations with his family, but not all the time. They agree that it’s all about finding the balance in whatever way works for you and your family.

This podcast also covers how Laura is getting fantastic case values, what she’s doing to develop her new associate, how to find the balance in your workload, and much more.

 

92 – Delisi Friday – Back In Action: Post-Trial Discussion

In this episode of the Trial Lawyer Nation podcast, Michael sits down with his Director of Marketing and Business Development, Delisi Friday, for a retrospective look at his recent in-person trial, including prep, mindset and more, only 3 days after the case settled.

The episode begins in a unique way with Michael turning the tables on the traditional Trial Lawyer Nation format and passing the interviewer role to Delisi. She goes on to open the conversation about how Michael is doing after his recently settled trial. “I’m on cloud 9,” Michael says in response, before going into how fun it’s been getting back into a courtroom for his first in-person trial since February 2020. (For the post-trial discussion of that case, check out Ep 53 – The Verdict Is In! with Malorie Peacock.)

After a brief reflection from Michael about just how much he missed in-person trials, Delisi comments on the “calm confidence” he displayed throughout the trial and asks how he developed that skill. Michael goes on to describe working on his mindset and sense of self to “have joy in trial.” He elaborates by sharing how he worked to separate his value as a person and his worth as a lawyer from his trial results. This created an environment where he was not only able to have fun and focus on what he needed to do, but also remove unnecessary pressures.

“You don’t want to say ‘I don’t care whether I win or lose,’ because that’s not true […] but, I just let it go [and] went in there with, ‘I’m just going to have fun, I have a great story, I’m going to tell that story, and I’m going to trust the jury to do the right thing.’” – Michael Cowen

Following a discussion on the differences between this trial and trials in 2019, Michael goes into the unique jury selection process for this trial. For starters, to appropriately space the 45 potential jurors, a larger courtroom was used which came with its own obstacles, such as columns blocking peoples view, the need for multiple spotters, and jurors being unable to hear their peers which limited discussion. “This was probably a little better, because we actually got to talk to every single person and the judge didn’t give time limits. We got to spend a full day doing jury selection, which in south Texas is a rare thing.”

Circling back to voir dire from a conversation about the client in this case and the challenges that arose from her growing story, Delisi cites Joe Fried’s advice from a previous episode (Ep 86 – Challenging Your Paradigm) regarding being comfortable with your number and asks Michael about his number, how he got to it and if he brought it up in voir dire.

Click here to view/download Michael’s opening transcript for the case referenced in this episode.

“I wanted to mention the $30 million number, that was going to be my ask in the case, and I put a lot of thought into why I thought $30 million was fair in that case […] I wanted to get it out there early.” – Michael Cowen

In order to better understand the $30 million number, Michael goes on to describe his client’s injuries and her life before the incident. Before the incident, his client was a charge nurse at a women’s oncology unit in a top hospital in San Antonio. She enjoyed her job, helping others, the comradery with her fellow nurses and some well-deserved bonding time after a 12-hour shift. After the incident, however, that would quickly change.

Following an incident at Big Lots, where a 29-pound box hit her in the neck and shoulders, she would incur physical injuries such as a multi-level fusion in her neck, a rotator cuff injury, back pain and (we believe) a mild traumatic brain injury (mTBI).

Delisi then asks Michael about his decision to not have his client in the courtroom. Michael goes on to explain when your client is there, the jury is focused on them (seeing if they’re fidgeting, timing how long they’re seated/standing, etc.) and are not listening to the testimony. He also brings up that his client had some real psychological problems such as anxiety and depression, and that her moods could be unpredictable; a factor that he did not want to risk when presenting in front of a jury and felt would be unfair to her as well.

The only reason to really call her was fear that [the defense] would punish us for not calling her.” – Michael Cowen

Delisi shifts the conversation to Michael’s use of photos of the client before her injury. Michael explains that to know what someone’s lost, you need to know what they had, and how he had to “bring to life” the person she once was. He goes on to say that he worked with his client, her friends, family, and others to get a lot of photos of her smiling, and doing what she loved, to paint a picture of her joyful life. When talking to Michael after the case settled, one juror described the contrast of those smiling, happy photos to her current, pained photos as “striking.”

One of the final topics Delisi brings up in this episode, is Michael’s thoughts on trying his first case with his law partner (and frequent TLN guest) Sonia Rodriguez. He shares why it was a great bonding experience and while there may have been some differences in approaches, that he knows their trial team “will get there” after working more cases together. Delisi brings this topic full circle by discussing the importance of over-communicating with your staff, especially ones that you’ve not tried cases with before, to assure your trial preferences and processes are handled as smooth as possible for all parties involved.

The episode ends on a lighter note with Michael talking about an experience with his 10-year-old son, a meltdown, and his unique approach to make his son smile. He explains that during a 3-day weekend, his son did not want to do his homework and was less than thrilled about being asked to do so. Michael, attempting to soothe the situation, offered a unique (and very attorney) approach to the situation; a Change.org petition to end weekend homework. The two end by calling out to fans of Trial Lawyer Nation to make a 10-year-old boy (and many more 10-years-olds, for that matter) smile by adding their signature to the petition.

This episode also covers the differences between trials pre- and post-pandemic, Michael’s feelings about settling his case during his return to in-person trials, going against respectable defense lawyers, and much more.

90 – Sonia Rodriguez – The Trials of War: Tactics, Strategy & Mindset

In this episode of the Trial Lawyer Nation podcast, Michael sits down with Cowen Rodriguez Peacock partner and attorney, Sonia Rodriguez, to discuss Sonia’s rediscovered inspiration and lessons from Sun Tzu’s “The Art of War,” and the strategies and tactics trial lawyers can utilize from it while still dealing with a pandemic.

Michael opens the episode by telling Sonia about his feelings of frustration about his upcoming case (which is less than a week away at the time of recording) being canceled due to Covid concerns. Sonia responds to this by saying this trend of “getting the rug pulled out from under you,” seems to be the “new normal” for trial lawyers during the pandemic.

The two then begin to discuss how this impacts your case outside of the courtroom, specifically having to invest time and money into a case multiple times due to cancellations, the need to find flexible experts, and the pandemic’s “giant wrench” in your damage evaluations.

“We all know that, even in non-pandemic times, the certainty of a trial date was never really that certain. But now, the prospect of having to prepare multiple times for the trial setting is going to multiply the cost.” – Sonia Rodriguez

The conversation then shifts to what trial lawyers can do in times like these to maximize the value of their cases. Sonia begins by discussing her re-reading of Sun Tzu’s “The Art of War” and its impact on her successes in 2021.

“I’ve been practicing law for almost 25 years, and I’ve never made more money in a one-year period than I have during this pandemic,” Sonia says leading into her first citation from the book (with a notable twist for trial lawyers); “Supreme excellence consists in breaking the enemy’s resistance without [a trial].” This, she notes, is similar to the modern-day strategy, “If you want peace, prepare for war.”

Sonia then delves deeper into this concept by discussing how she prepares for war, or in this case trial, by hiring and preparing our experts, paying for exhibits, and (probably most important) laying plans and evaluating her cases strengths and weaknesses.

“If you know the enemy and know yourself, you need not fear the result of a hundred battles.”– Sun Tzu, “The Art of War”

Building on the subject of the importance of evaluating your case, Sonia presents one of her touchstones for case valuation: Remember torts 101, negligence has two parts. She presents that it’s easy to fall into the rut of evaluating your case based on your client’s damage model. However, if you look at your case carefully, based on liability factors you believe, and go to battle fairly evaluating both components, you will add value. Michael agrees with this, adding that if the defense did something really bad, you’re more likely to get a bigger result.

The two continue this conversation with Sonia explaining how mediators only want to talk about low property damage and pre-existing conditions; subjects to which she responds, “I spit on that!” Instead, she wants to talk about this trucking company, how they have no training protocols, how they’ve had the same types of crashes for the last 3 years, and so on; ultimately aiming to change the framework of the conversation to focus on liability.

“No one really knows what a case is worth. There is no magic formula … . If we, in our heart of hearts, believe it’s worth more, we can get more.”– Michael Cowen

Sonia then shifts the conversation to “attacking by fire,” or, in other words, always coming from a position of strength, even if you have weaknesses in a case. Regarding the weaknesses of the defense, however, Michael adds, “you always want conflict in the other room.” We want to add pressure to the other side to the point that they want out. Adding a final point to the subject of “attacking by fire,” Sonia hones in on her “fun” way to strategize; namely finding the pressure point of the defense and exploiting that weakness.

Moving on to discussing and evaluating the actions of the defense, Sonia cites Chapter 9 of “The Art of War,” entitled “Assessing Strategy Based on the Actions of Your Opponent.” Here, Michael and Sonia discuss how noticing aggression, “frenetic” activity, or threatening motions from the defense are clear signs of fear and, more importantly, weakness. “Especially when you respond with calm,” Michael says, “There’s nothing like that calm, quiet confidence.”

On that note of quiet confidence and taking power from the defense, Michael begins to take the conversation in a different route, breaking down his feelings about the results of cases and how that relates to his self-worth as a trial lawyer.

“It’s not that I don’t care about the result, it’s that my self-worth is detached from the result.”– Michael Cowen

This prompts the closing topic of conversation for the episode, mental health in the practice of law. Michael and Sonia discuss the trials and tribulations of their profession including starting and ending trials, letting go of trials (win or lose), the discipline required to maintain a healthy lifestyle, and being compassionate to yourself. “I think perfectionism is something a lot of lawyers struggle with,” Sonia says, “The struggle holds us back.” The two end the episode by sharing their own strategies for coping with the struggles of practicing law and close with a positive note of constantly seeking to be better in their cases, mental health, business, and practice.

This episode also discusses finding the weaknesses in your case and how to overcome them, the importance of obtaining key information during the initial client meeting, and trusting your intuition.

88 – Malorie Peacock – The 10 Commandments of Case Management

In this episode of the Trial Lawyer Nation podcast, Michael sits down with his law partner Malorie Peacock, for a deep dive into their firm’s “10 Commandments of Case Management.” In addition to this, the two also discuss how they developed these standards for working up a case, how involving their team was essential to the long-term success of their plans, and how they intend to track progress moving forward.

Michael and Malorie begin the episode by jumping right into Commandment #1: setting up the initial client meeting. They discuss why meeting with the client in the beginning of a case is so crucial for building the attorney-client relationship, obtaining critical information to get the case on file, and making the client feel comfortable. They explain why the standard they landed on was to have the initial client meeting scheduled within 7 days of the case being assigned to a litigation team.

Moving on to Commandment #2, “the attorney will file suit within 60 days of the initial client meeting.” Michael begins by asking Malorie why he got talked into 60 days as opposed to his original thought of “within a week of having the file assigned.”

“I keep going back to the fact that these are minimum standards, so they’re something that we want to be able to apply in every single case, if possible.” – Malorie Peacock

Following up on this point, Malorie explains how one issue discussed on this topic was that the attorneys must meet with the client before filing the lawsuit; reiterating the importance of the initial client meeting and not only having it, but “getting it right.” The 60-day window allows for deeper research and investigation, as well as time to discuss with experts.

Continuing to the next Commandment (#3), the team discusses their standards for discovery; primarily written discovery and the involved mandatory disclosures. The standard ended up being to submit written discovery within 30 days of the date that discovery is allowed, depending on the rules and jurisdiction.

“We wanted to make sure that we weren’t encouraging people to just use forms; that we were still giving people time to think about it.” – Malorie Peacock

After a brief discussion, the team move on to Commandment #4, setting depositions. In this segment, Michael and Malorie explain that deposition dates should be scheduled within 45 days of when depositions are allowed to begin: again, depending on the rules and jurisdictions. “It’s making sure that we’re moving that ball forward to get the deposition scheduled,” Malorie says when discussing being aggressive with scheduling, adding onto this by stating, “delay is the friend of the defense … not the plaintiff.”

Commandment #5 establishes the team’s minimum standard of one file review per month. Michael then recites the detailed list of questions contained in these reviews, which, although they may seem extensive, are incredibly important to ensuring an effective file review.

Some monthly file review questions include:

  • Have we served all the defendants?
  • Do we need experts? If so, who have we hired or need to hire?
  • What should we do in the next 30 days to move this case closer to resolution?

Moving on from internal reviews and updates on a case, the team then discusses Commandment #6: client contact. These calls serve the dual-purpose of keeping the client informed as to the status of the case and what (if anything) has changed, as well as to check in with the client on a personal level.

“[Client contact] isn’t just talking to the client […] it’s a set of specific questions and information that need to be relayed to the client, and that the client needs to relay to us.” – Malorie Peacock

Commandment #7 is simply getting a scheduling order or, depending on the jurisdiction, a trial date; the deadline for this being 120 days from the time that the first defendant files an answer. “We do have some exceptions for this one based on what the court will allow and what the rules of civil procedure in that jurisdiction permit you to do.” The two continue this topic by going into detail on the exceptions they foresee regarding this commandment.

The next Commandment (#8) involves implementing a strategy to set appropriate settlement values for cases: “an attorney must present their case to the weekly roundtable before sending a demand or engaging in settlement negotiations.”

Malorie happily steps forward to discuss this commandment, citing it as “one of [my] favorite things we’ve implemented this year.” Malorie explains how during these roundtables, Cowen Rodriguez Peacock lawyers present their case(s) with the purpose of discussing the case and valuation with the team, with the goal of gaining insight and learning from those with more experience.

Michael moves on to one of the self-confessed “least popular” yet still important Commandment (#9): attorneys must submit a report 90 days before the expert deadline and 90 days before trial, to be filled out and submitted to Michael. The importance of this commandment can be summarized by this short but sweet quote from Michael on the subject.

“Less than 90 days, you don’t have time to fix things.” – Michael Cowen

Michael and Malorie continue the discussion of their firm’s commandments with #10: any case that might go to trial, the attorney must set a pre-trial meeting with Michael at least 60 days before the discovery deadline.

“I want to be able to brainstorm with people, come up with exhibit ideas, come up with testimony ideas, but I need to do it at least 60 days before the discovery deadline because [invariably] I come up with ideas that require us to find additional witnesses, documents, visuals, those kinds of things. You need [those items] created, found, and disclosed to the other side in time to use them for trial.” – Michael Cowen

The episode closes with Michael and Malorie adding that an important factor that cannot be overlooked when discussing the standards presented in this episode is the inclusion of the team’s input during the creation of said standards.

“We turned down people’s ideas, we accepted people’s ideas, but we all had a long, lively conversation about it. At the end, I think everybody agreed with every single standard on the list because they felt heard out, and now they understand the perspective of it.” – Malorie Peacock

This episode also discusses the star rating, the fine line between too much detail and not enough, pre-trial checklists, and more.

 

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