practice

71 – Richard Newsome – Mixed Method Advocacy: A Hybrid Approach to Sharpen Your Trial Skills

In this Trial Lawyer Nation podcast, Michael sits down with his old friend and seasoned trial lawyer Richard aka Rich Newsome. Rich specializes in automotive product liability cases and is one of the top lawyers in this area in the country. They discuss Rich’s journey to success, his Trial School, the importance of young lawyers trying cases, how to move on and learn from a loss, and coping with fear and anxiety in the courtroom.

They begin the episode with Michael asking Rich about his journey to becoming one of the best automotive product liability plaintiff lawyers in the country. Rich explains how he began working in a federal prosecutor’s office right out of law school, then transitioned into working at a civil defense firm doing automotive product liability work. His transition into plaintiff’s work came after deposing a family in a particularly heartbreaking seat belt failure case. In that pivotal moment, he realized he needed to be working for the other side and representing people instead of massive corporations. He joined a small practitioner and began “knocking on doors” of other plaintiff lawyers to start trying product liability cases as their co-counsel.

Michael then brings up how automotive product liability is a tough field to get into on the plaintiff’s side, to which Rich whole-heartedly agrees. They discuss the difficulties of product liability cases and offer several recommendations for young lawyers looking to get into product liability including “getting plugged in” through AIEG, working for an experienced lawyer with the capital to try these notoriously expensive cases, and many more.

With the field being this tough and cases being so expensive to try, Michael asks Rich about his case selection process. He replies simply, “At the end of the day, you can’t try a product case for less than half a million dollars.” With that being said, the case needs to meet two guidelines: 1) There needs to be a catastrophic injury, and 2) there needs to be a clear fact pattern showing the plaintiff should not have sustained a catastrophic injury. He goes on to explain how even though “this whole area is fraught with mine fields,” the work is incredibly important for society in regards to policy changes and consumer safety.

Rich and Michael then discuss the importance of taking cases to trial and refusing to settle quietly, which leads them to every trial lawyer’s worst fear – taking a big case to trial and losing. They trade “war stories” of their most memorable losses which still haunt them to this day, but reflect on what they learned from those early losses and how they made them better trial lawyers. As Rich puts it, “When you take a big loss, it forces you to improve your game.”

Rich ultimately blames his biggest trial loss on picking a bad jury, which was surprising to him because he was following the voir dire method of some of the most successful trial lawyers in the country. This led him to get 30 of these great lawyers together for a 3-day focus group to try out different voir dire methods. They found that the most effective method was really a combination of a variety of methods, which is now known as “Mixed Method Advocacy.” Michael agrees and shares his experience of learning that one lawyer, no matter how great they are, does not have the ultimate answer of how to try a case. The real growth is in practicing and learning which methods work best for you, then being willing to constantly adapt and learn new things.

This discovery of Mixed Method Advocacy led Rich to start Trial School, a community of trial lawyers who freely share information for the betterment of the plaintiff bar. Trial School is free to join (yes, completely free), easy to access, and full of incredibly useful information for any trial lawyer.

The conversation then comes full circle to where Rich is today after applying the information he learned from those other great trial lawyers. He shares a story of a wrongful death case he tried in an extremely conservative county. He applied everything he had learned from both other lawyers and his own experiences, which resulted in the largest wrongful death verdict ever in that county. They dive into the details of the case and the numerous techniques he applied, which make this verdict even more impressive.

Michael then asks Rich about how he conquers the fear and anxiety associated with going to trial, a topic which Rich describes as “the great elephant in the room that nobody wants to talk about.” He admits to experiencing it and explains how it stunts your performance in the courtroom. He outlines numerous ways to cope with this including beta blockers, “batting practice,” and many more interesting strategies (even learning some from a hypnotist!). Rich feels so strongly about the need for better fear management in the legal industry that he’s dedicating Trial School’s spring program to the topic.

Michael continues on this point by sharing the strategies he’s learned over the years, to which Rich replies that Michael has a huge advantage over a lot of young lawyers due to his experience in the courtroom. Rich explains this by using an extremely helpful analogy about Nascar drivers which you need to hear to fully appreciate, but concludes with “I think one of the biggest solutions to fear is practice.”

They conclude the episode by discussing the need for young lawyers to get experience trying cases. While this can be a challenge, Michael insists that if you offer to try a firm’s small cases they’ll let you. He explains how if you get in there and lose a few times, you learn that you can survive a loss and gain invaluable confidence along the way.

If you’d like to join Trial School, visit www.trialschool.org to apply. You will need two plaintiff lawyer references and to fill out an affidavit stating you only represent people, but it is 100% free and an incredibly valuable resource to every trial lawyer, both young and seasoned.

This podcast also covers the “gifts” they were given throughout their careers, the importance of visuals in trial, the voir dire technique Rich used in his big verdict, avoiding dogma in trial techniques, and so much more.

Bio:

Rich Newsome is the senior partner of the Newsome Melton law firm and represents people and families in complex civil litigation.

After graduating from the University of Florida College of Law in 1989, Rich worked as a federal prosecutor for the U.S. Attorney’s Office in the Northern and Middle Districts of Florida. Rich left the U.S. Attorney’s Office in 1993 and went to work for a large product liability defense firm in Orlando, Florida where he represented manufacturers. After defending a manufacturer in a case brought by a family who lost a child, Rich felt compelled to leave the defense practice and began representing only families and individuals. Since then, for more than 25 years, Rich’s practice has focused on representing people who have suffered catastrophic or fatal injuries.

In 2001, Rich was appointed by the Florida Governor to the Fifth District Court of Appeals Judicial Nominating Commission and served as the JNC’s Chairman during his term. He is a Past-President of the Orlando Federal Bar Association, Past-President of the Florida Justice Association, Past-Member of the Board of Governors of the American Association for Justice, Past-President of the Central Florida Trial Lawyers Association, and is a member of the American Board of Trial Advocacy.

Rich is a graduate of the Gerry Spence Trial Lawyer’s College and was invited to serve as a member of the College Faculty. Rich is a member of the Florida, Texas, New Mexico, and Oregon Bar Associations.

In 2016, Rich was selected as the “Orlando Personal Injury Lawyer of the Year” by Best Lawyers, a peer review publication. In 2015, Rich received the Steven C. Sharpe Public Service Award from the American Association for Justice, in recognition of his representation of Corey Burdick who was severely injured by a defective Takata airbag. The Steven C. Sharpe Award is awarded annually to one attorney and their client.

In 2017, Rich was appointed to the Constitution Revision Commission by Richard Corcoran, the Speaker of Florida’s House of Representatives. The 37 member Commission drafted and submitted 32 amendments to the Florida Constitution which were placed on the ballot and approved by Florida voters to be part of the Florida Constitution in November 2018.

In 2019, Rich was recognized by the National Law Journal as having won two of the Nation’s 100 largest verdicts in 2018.

Rich is a member of the Summit Council, a national group of America’s best plaintiff trial lawyers. Membership is limited to less than thirty trial lawyers from across the country, is by invitation only, and is extended to lawyers who have a proven record of large jury verdicts and are recognized as leaders of the national plaintiffs bar.

Rich is a founding faculty member of Trial School, Inc., a not-for-profit organization which seeks to foster collaboration between lawyers on today’s best trial advocacy methods and to provide free education and practice for trial lawyers who exclusively represent people and families.

 

69 – David Koechner – Hit Your WHAMMY! The Power of Storytelling

In this Trial Lawyer Nation podcast, Michael Cowen and his Director of Marketing and Business Development Delisi Friday are joined by a VERY unique guest – David Koechner! David is a Hollywood actor and comedian who has starred in over 190 films and TV shows. He is best known for his roles as Todd Packer from “The Office” and Champ Kind from “Anchorman” and “Anchorman 2.” You may be wondering how David has any connection to attorneys, but we assure you this episode is full of timely advice for trial lawyers and is just what we need to hear right now. The trio will discuss David’s path to success and his advice for presenting to an audience (think: the jury) both in person and through a screen.

The episode begins with Michael briefly explaining the premise of this special episode. He explains how David comes from the TV/film world, and lawyers are now having to adjust from a live audience to an audience through Zoom. He shares how he’s excited to “learn how to communicate with other human beings through a screen,” or a jury spread out across a stadium or convention center for socially distant in-person trials.

Michael then asks David about his background and how he got into acting. David shares how he grew up in a small town in Missouri and began working for his father’s turkey coop manufacturing business at the age of 7, something he says instilled a strong work ethic in him from a young age. Being from a small town, David had no idea acting was a possibility for him having never met an actor himself. So, he decided to attend college with a political science major where he realized in his third year that “To be in politics, you either need to come from a political family, you’re incredibly wealthy, or you’re the smartest person in any room you walk into. I was none of those things.” He then dropped out of college and worked three jobs until he visited Chicago to attend a “Second City” performance and realized, “This is it. This is what I’m going to do.”

From that moment on, David spent the next 9 years on stage at least 4 nights a week, putting in his “10,000 hours” and citing the book Outliers by Malcolm Gladwell until he made it onto Saturday Night Live. Michael aptly compares this to up-and- coming trial lawyers – you have to try a lot of small cases before you get a shot at the big ones. They follow with an insightful discussion of the role of “luck” in being successful, which David believes is “really about hard work, isn’t it?”

They then move onto the topic on everybody’s mind right now – How do you effectively communicate with a jury when you’re either wearing a mask or limited to a screen? David recognizes the challenges of doing so, but emphasizes that the most important thing is always your connection to the story. He believes that is the compelling part of any presentation – whether in the courtroom or through a TV screen.

David continues with his recommendations for preparing to present while wearing a face mask. He suggests that lawyers preparing for an in-person trial in the COVID era start observing other people wearing face masks wherever they go. He explains how you can easily tell if someone is calm and purposeful, or agitated by looking at their body language.

Delisi then explains that Michael is going to be conducting voir dire in a football stadium in his upcoming trial. She asks David for advice on how to use your body in a venue that big to make everybody feel included. David suggests that Michael purposefully look at every single person he’s addressing, think about where his words will land, and pace around as he speaks so everyone feels included in the conversation. He also shares a very insightful strategy he uses when preparing for a show in a new venue, which will be helpful to every lawyer listening in future trials and other presentation preparation.

Michael then inquires as to how actors make the audience believe they’re reciting something for the first time when it’s actually been scripted and rehearsed countless times. David astutely replies – “I think that’s the point – rehearse.” He continues by explaining that if he has his lines completely down, he’s fully present and available because he’s not searching for his lines. This gives him (and every actor) the opportunity for “discovery” in a scene, where he is fully engaged with his scene partners and able to truly listen and react honestly to what they say. And it results in successful improv when he films with his comedy peers, like Will Ferrell and Steve Carell.

A brief discussion of the importance of letting silence sink in leads to a very interesting conversation about trusting your audience. Michael shares his experience of switching his mentality of “I need to say everything I have to say” to “It’s not about what I have to say, it’s about being heard,” and with that transition learning to trust the jury more and focus on telling the story, not on controlling the jury.

David then adds, “It’s about respect. You’re respecting the jury to make their own decisions. That will come across.” And while the difference between a crowd at a comedy show and a jury in a courtroom are apparent, the commonalities they share run deep. As Delisi so eloquently puts it, “at the end of the day you’re both storytellers.” David continues by explaining how if he hasn’t heard a laugh in 5 minutes, he knows he needs to change something about what he’s doing. While jurors don’t openly laugh or react, Michael insists “You know when you’re resonating with another human being. You feel it.”

They continue on this note to discuss coping with a loss. David shares how he always mentally prepares to fix what went wrong and assumes, “This is going to go well. Period.” David then describes his favorite adage to tell nervous actors, which is that you always hope the person presenting does well. While admitting it’s marginally different for lawyers, he insists that “they at least hope you’re competent,” which Michael agrees with wholeheartedly, ending this conversation by saying “People want to do the right thing.”

David, Michael, and Delisi end the episode by discussing David’s new business, “Hey, Good Meeting!” Michael and Delisi previously worked with David to surprise the audience at this year’s Big Rig Boot Camp with a comedic appearance by David. These types of events are exactly what Hey, Good Meeting specializes in and provides a unique experience with nationally recognized actors and comedians. If you’d like to book a live comedy experience customized for you and your guests at your next virtual event, holiday party, or referral partner gathering, go to www.heygoodmeeting.com for booking information.

This podcast also covers why all men are secretly 14 years old, what was so special about Chicago in 1996, the importance of listening, playing an outrageous character convincingly, applying the “Rule of 3” to the courtroom, David’s favorite improvised scene from “Anchorman,” using body language to communicate, how David deals with hecklers, and so much more.

 

 

Bio:

Actor, writer and producer David Koechner grew up in Tipton, Mo. working for his father in the family’s turkey coop manufacturing business. He studied political science at Benedictine College in Atchison, Kan, and then transferred to the University of Missouri. After college, Koechner moved to Chicago, where he studied improvisation at the IO (formerly the ImprovOlympic) with Del Close and Charna Halpern. He went on to become an ensemble member of Second City Theater Northwest.

From there, Koechner spent one season in the cast of “Saturday Night Live” before moving to Los Angeles and landing guest appearances on “Curb Your Enthusiasm” and “Reno 911” and a recurring role on “Still Standing.” He co-starred in indie films such as “Dill Scallion,” “Wakin’ Up in Reno,” “Dropping Out” and “Run Ronnie Run” while also turning solid performances in studio comedies such as “Out Cold,” “My Boss’ Daughter” and “A Guy Thing.” Koechner, along with Dave “Gruber” Allen, developed and performed The Naked Trucker & T-Bones Show on stage at Club Largo in Los Angeles. The show later became a Comedy Central series.

Koechner’s first major film break came when he was cast as Champ Kind in “Anchorman: The Legend of Ron Burgundy” (a role he reprised in 2013’s “Anchorman 2: The Legend Continues”). Koechner has been seen in a variety of studio and independent films such as “Daltry Calhoun,” “The Dukes of Hazzard,” “The 40 Year Old Virgin,” “Waiting,” “Yours, Mine and Ours,” “Talladega Nights: The Ballad of Ricky Bobby,” “Snakes on a Plane,” “Let’s Go To Prison,” “Semi-Pro,” “Get Smart,” “My One and Only,” “The Goods: Live Hard, Sell Hard,” “Extract,” “Final Destination 5,” “A Haunted House,” “Paul,” “Scouts Guide to the Zombie Apocalypse,” “Priceless,” Legendary’s “Krampus,”  the animated feature “Barnyard,” the critically acclaimed “Thank You for Smoking,” and the film festival award-winning thriller “Cheap Thrills.” He also starred in the Fox Atomic comedy “The Comebacks.” Recent film projects include “Then Came You,” “Braking for Whales” and “Faith Based,” as well as the upcoming indie horror thriller, “Vicious Fun.”

Koechner currently plays Bill Lewis on ABC’s “The Goldbergs” and recently appeared on ABC’s “Bless This Mess,” CBS’s “Superior Donuts,” Showtime’s “Twin Peaks,” Comedy Central’s “Another Period” and IFC’s “Stan Against Evil.” He also voices reoccurring characters on FOX’s “American Dad” and Netflix’s “F is for Family” and “The Epic Tales of Captain Underpants.” Koechner is well-known for his character Todd Packer on NBC’s hit comedy “The Office.”

When not filming, Koechner performs live stand-up comedy across the country and creates original content videos for his YouTube channel, “Full On Koechner.” He also co-hosts Big Slick Celebrity Weekend – an annual charity event benefitting Children’s Mercy Hospital of Kansas City – with fellow KC natives, Rob Riggle, Paul Rudd, Jason Sudeikis and Eric Stonestreet. Koechner currently resides in Los Angeles, California.

 

51 – Malorie Peacock – Preparing Yourself and Your Case for Trial

In this Trial Lawyer Nation podcast, Michael Cowen talks with his law partner Malorie Peacock to discuss trial prep. Trial prep has been a topic many of our viewers asked to hear more about, so this episode covers everything from file organization, to witness prep, opening and voir dire, visuals, your exhibit list, and the mental toll trial can have on you personally.

To begin, Malorie starts with how important it is to be organized. She begins her organization process 30 days out by putting her exhibits together, printing out the jury charge and witness list, then looking at everything and thinking about the game plan. Her goal from there is to create a 1 or 2 page “order of proof for trial” with exhibits, list of witnesses, and the key points to be made in the trial. Michael agrees and shares a common mistake he sees a lot of lawyers make when they “put every possible piece of paper from the case on their exhibit list.” He suggests lawyers ask themselves: A) is this an exhibit necessary for the jury to see, or B) do I need this to protect the record? Then review how many exhibits you have and what is their order. “If the focus of your case is trying to get the medical bills in your case, then your first exhibit is a summary of all of the medical bills and the medical treatment in the past … so the jury knows when they open the binder ‘this is what we’re focusing on and this is the focus of the case.’” Malorie continues.  Michael also shares how he organizes his complete list of exhibits on his laptop, so if at any point in trial he needs to pull up an exhibit on the fly he can quickly find it.

It takes a lot of time and energy to write a good opening and prepare for voir dire. Which is why Michael and Malorie discuss how changes in your story throughout a case, can affect the opening and voir dire work you do early on. Michael gives an example of this on a case he will try in February with Malorie. Months before trial they worked with a consultant on the case, had a theory on the case, graphics already prepared, then after they developed all of the evidence they decided it wasn’t the best story to tell. Creating a new story and theory may be extremely difficult to do after investing lots of time, money, and energy, however it’s an important part of the trial preparation process.

Which leads to a conversation on storyboarding, creating visuals, and how Sari de la Motte helped Michael rethink his use of the phrase “a simple case” when talking to the jury and using visuals. Malorie brings up just how important it is to tell your witnesses where they should be looking when they answer questions. We as attorneys may think it’s obvious a witness should talk to the jury when answering a question, but in reality it’s normal for you to look at the person you are talking to. “I think people believe that trial lawyers are natural public speakers, but if you’ve ever been to a conference you know that’s not true,” Malorie explains. You might think “it’s only 12 people,” but when your entire case relies on those 12 people, on a really important matter, and your client is watching you, the nerves start to creep in so you have to practice. And practice does not apply simply to speaking, Michael shares his reasoning for adding several solid black slides in his PowerPoint in order to command the attention of the jury when visuals are involved.

Michael then transitions the conversation by expressing his opinions on why every case will have a different order of witnesses. You should determine the order of witnesses based on each case, start strong, think about a witness who can prove the defendant did something wrong, think about when a witness goes on (time of day and when the jury has low energy), and be sure to end with a message of the harm that was caused but a hope of what a verdict can do to help. But emergencies happen and people are late to court, so Malorie reminds you to be flexible.

And the only way you can be flexible is when you are mentally and emotionally prepared for trial. Malorie suggests you spend time with family and decompress the day before trial. Which Michael agrees with because you “spend so much time during trial staying up until 2 am” preparing for that next day, you cannot risk the exhaustion and mental fog and need to be in bed at a decent hour and fully rested.

Being aware of your energy after trial, is equally important whether you win or lose the case. You need to take a day off and recognize it is not possible to be 100% on every day. Or maybe you come in to work and just talk to people in your office. But Michael very bluntly shares “it’s hard because when you’re in trial all the other shit piles up” so when you’re out of trial you feel like you need to play catch up. “It’ll wait a day you need to take care of yourself,” he adds. After each case you should re-evaluate the parts that went great and where you can improve in your next trial, but again it’s important to give yourself space. Michael’s NFL quarterback analogy for this is spot on and reminds attorneys not to value yourself differently after a trial, instead focus on the work you put in.

This podcast on trial prep truly is detailed and also discusses: thinking about your clothes, glasses, how to prep lay witnesses, saving money on images by using Google and Adobe, thinking about the Rules of Evidence, and trying cases with other people. And with Michael and Malorie’s jury trial (mentioned in this episode) resulting in a 7-figure verdict, podcast listeners can expect to hear another episode discussing trial soon!

50 – Sari de la Motte – Voir Dire & Opening: Forming The Best Jury Possible

In this Trial Lawyer Nation podcast, Michael Cowen invites Sari de la Motte back to the show. Sari was one of our top episodes in 2019, so to celebrate 50 episodes and over 100,000 downloads we invited her to be our first returning guest. This show will cover voir dire, opening, the concept of group communication, and how all of these concepts help you form the best jury for your case.

To start things off, Sari shares that her book “From Hostage to Hero: Captivate the Jury by Setting Them Free” is now available for purchase. She reveals how her desire to help trial lawyers understand why jurors “don’t want to be there” (summoned for jury duty), how to deal with this, and then lead them from their “hostageness – their inability to say no to this process” to choosing to be a part of the jury, was how the idea for the book began. Michael adds how initially this reminded him of Carl Bettinger’s book “Twelve Heroes, One Voice” in that both Carl and Sari believe it is important to help your jury become the hero in the case. But after working with Sari, Michael sees how she focuses more on the hostage aspect, shows you how to release the jury panel from this, works to help you understand how important nonverbal communication can be, and gives practical tips to use in the courtroom.

Jumping right in Michael introduces the highly debated topic of “inclusive voir dire” versus “exclusionary voir dire.” He reveals how in the past he has used exclusionary voir dire to find his bad jurors, but understanding Sari’s thoughts on the “hostage mentality” has made him rethink his voir dire technique. Putting it bluntly Sari gives the example of “when you come in with the mindset of ‘who here is out to kill me and how do I kill them first’ that is like a poison and a disease” which then spreads and has your potential jurors wanting to find a way to get out of being selected for your jury.  A different mindset where you find the people who want to help you can change this and Sari’s analogy involving hiring a new paralegal and sorting through resumes helps put everything into perspective.

Michael pivots the conversation into how important mindset is for trial lawyers. Sari truly believes “how you’re thinking, affects how you act, which affects your results” and explains how the CTFAR model can help. Michael gives the example of his mindset before his upcoming jury trial and how he is reminding himself “jurors are good people and want to do the right thing and help my client.” This example leads to Sari sharing just how useful the mindset of “the jurors love me” was for a client of hers and how the success of this led to a $10 million dollar jury verdict. And if you are thinking “this is bullshit” Sari explains the communication science behind it and why it works.

Moving from mindset back to voir dire, Sari and Michael discuss how frustrated potential jurors are in the jury selection process. When jurors are not sure why they are there and what is happening it’s critical to get to the point and say what they are in court to do. The next step is to then think about voir dire as a group process and not an individual process, because you are there to create a group and you want a group to reach a verdict in your case not 12 individuals. Michael adds how equally important it is to think about the information you share with the group, the order in which you share it, and how you shape the conversation. The order in which you share your information is crucial and your timing is too, which leads to Sari explaining how jurors will immediately think whatever principle or fact (good or bad) you bring up first is the most important part of your case.

Michael wraps up this episode with a discussion on managing energy. He shares his experiences as a trial lawyer by describing his energy level as a young attorney as being extremely high energy at all times, but then when he tried to slow down he came across as “low energy and passionless,” and now he has learned about “managing energy” to keep the jury engaged and never bored. “Ringing the bell” is an engaging way for attorneys to keep the jury on the edge of their seat and is described as a tool for great storytelling in your opening. However, these techniques are not natural and as Michael points out you have to practice before you do this in front of the jury successfully. Practice should not be confused with scripting an opening, so Sari reminds listeners this is for “the ease and the delivery of information not rehearsing it word for word.”

The podcast is filled with additional great advice ranging from the importance of videotaping yourself, why it is imperative to rehearse saying the dollar amount you want a jury to award, thinking about the principles in your case, how journaling can help you in your mindset, using devils advocate questions, thinking about voir dire and how it connects jurors to you in your opening, and so much more. It’s truly a show any attorney will want to listen to more than once.

 

BACKGROUND ON SARI DE LA MOTTE

Sari de la Motte is a nationally recognized coach, speaker, and trial consultant. She has trained extensively with an internationally recognized authority in nonverbal communication and is an expert in nonverbal intelligence.

Sari specializes in helping trial attorneys communicate with jurors.

Sari speaks to audiences of a few dozen people to audiences of over a thousand. A sought-after keynote speaker, Sari is often asked to headline conferences across the United States.

Sari consults with trial attorneys all over the country, assisting with trial strategy, voir dire and opening statement. She conducts mock trials in her studio in Portland, Oregon and assists with jury selection on-site.

Sari has spoken for, and works with, several members of the Inner Circle of Advocates, an invitation-only group consisting of the top 100 trial attorneys in the United States. She’s has been a featured columnist for Oregon Trial Lawyer’s Magazine, Sidebar, and has also written for Washington State Association of Justice, Oregon Criminal Defense Attorney, and other legal publications. She provides CLEs for various state association of justices around the country.  Because of her unique ability to help attorneys communicate their real selves, she has been dubbed “The Attorney Whisperer.”

Sari is regularly interviewed on TV, radio, and in print, and has appeared in the Atlantic, Huffington Post, The Oregonian, Willamette Week and other publications. Her book, From Hostage to Hero: Captivate the Jury by Setting Them Free was released by Trial Guides in November, 2019.

For more information on Sari de la Motte you can visit http://www.saridlm.com/

41 – Malorie Peacock – Resources, Doctor Referrals, and Process-based Focus

In this Trial Lawyer Nation podcast, Michael Cowen sits down with Cowen | Rodriguez | Peacock partner, Malorie Peacock, for another TLN Table Talk to answer the questions of our listeners. This episode focuses on resources for trial lawyers, doctor referrals, and the process behind highlighting what’s most important to your case.

The first question brought to the table is about what the best resources for newer lawyers starting out in the personal injury trial lawyer world. Michael notes his favorite books today would likely not be his favorites for someone just starting out. Having said that, he recommends starting with books like the AAJ Deposition book by Phillip Miller and Paul Scoptur, pointing to the reality in which 90% of cases are likely going to settle and this book focuses on taking good depositions, increasing the likelihood of a higher value settlement for your clients. He also recommends David Ball’s book, Damages 3, which breaks down how to argue a case in a logical and coherent format, avoiding holes in your story, as well as Rules of the Road by Rick Friedman and Patrick Malone, that focuses on simplifying cases. As a follow up to reading all these great books which are meant to help simplify cases, Malorie poses the question of why it is important for lawyers just out of law school (where everything is so complex)  to make the transition to presenting to a jury where you have to make things simple, and why it is so difficult. Michael explores this idea and feels that it takes a lot more work to make things simple, and the complexity is what we hide behind to mask our own insecurities. They both agree that complexity and confusion are great defense tools and by presenting a bunch of confusing ideas to a jury could end up playing right into the defense’s hands. To top off the discussion about resources, Michael adds several other courses, trial colleges, information exchange groups, and other programs that are offered and can help lay the foundation for up and coming trial attorneys and also suggests choosing an area to really focus on, since no one can really know everything about everything.

Beyond books and seminars, Malorie brings up the idea of going to trials and second chairing trials as another great way to gain real life learning experiences. Michael also describes his approach to pairing up attorneys with each other based on where they are in their career to gain practical experience in the courtroom. It’s also noted, in cases where your might be trying them on your own, it can still be beneficial to bring in other attorneys who have done what you are about to do, to strategize and help you prepare. Malorie talks about a specific instance of this coming up for her, where she plans to help a friend through voir dire in their upcoming case. Michael also reminisces about several times back in his early days, enticing friends to come over and practice voir dire and openings with pizza and beer in exchange for their feedback. Although, these weren’t professionals or experts, this practice did help him get more comfortable with talking to people while getting useful feedback.

Another question from our listeners is about lawyers referring people to doctors and the perceived issue that the people getting referred are not actually injured but are being sent to a doctor who will work up some medical documentation to make them look like they’ve sustained an injury in order to make more money for the lawyer. Michael describes his personal experience with this issue in that, he faces it head on and is upfront about it, thereby avoiding any awkwardness or perceived deviance on his part. For him, it basically boils down to having a client in pain, who asks for advice on what doctor to go see. They’re not sure what doctor to go see. They don’t know any specialists in this area. What should I do? Most people would say, tell them to go see a doctor and give them a name. In other words, if you own it, you’re not ashamed of it, and you haven’t done anything wrong and just talk about it, it doesn’t seem to be a problem. He also points out that he’s never lost a case on this issue. Malorie also notes, whatever you make a big deal about to a jury, is likely going to be what they think needs to be a big deal, and by confronting it in a matter of fact type way, people take your cues that it is not something to harp on but rather, just being human to one another.

The next question from our listeners is why is it so important for lawyers to make the case about the company and not the low-level employee, and how do you do that? Malorie digs right in, talking through how there are really two main reasons why the company is the bigger villain in a case: 1. The company is where the deep pocket is, and 2. Oftentimes, the individual that did something wrong is likeable. It becomes much “easier for people to dislike a company than it is to dislike an individual who made a mistake,” Malorie explains. Furthermore, “when a company puts an individual in a position where it’s inevitable that they’re going to make those mistakes, and it’s inevitable that they’re going to hurt someone, then it really is the company’s fault.” Michael expands on this idea with an example of a defendant driver, who is usually making a mistake over a period of seconds. Whereas companies that don’t have good safety programs and often make choices, not mistakes, over a period of months or years. So, “it’s just harder to forgive them, whereas it’s easy to forgive someone for making a mistake, for taking your eye off the road for a second, for being distracted for a minute, for driving a little too fast. It’s harder to forgive someone for knowing that you need to have a company safety program and you just don’t do it.” Malorie continues to explore the many types of negligence that can be aimed at companies in how they treat their employees (IE: negligent training, negligent supervision, negligent monitoring, negligent entrustment, etc.). They continue to explore the “how” to make the case about the company, which brings up some truly fascinating ideas and tactics.

Michael and Malorie continue to explore several other topics throughout this episode like testing theories and hypotheses, root cause analysis, reassessing your case throughout the process, and the curse of knowledge. They also explore the processes of walking people through your case one step at a time so that on their own, it inevitably leads to the conclusion of who the good guy is, who the bad guy is, what’s right, and what’s wrong. It takes a lot of work to get there, but Michael and Malorie agree, it’s so worth it.

These Table Talk podcasts also could not happen without the interaction and questions that are submitted by our listeners, for which 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 them.

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