product liability

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.

 

42 – Cynthia Rando – Human Factors: How Space Station Precision Leads to Courtroom Results

In this Trial Lawyer Nation podcast, Michael Cowen sits down with Cynthia Rando, a Certified Human Factors Professional who also operates as an expert witness on human factors in the courtroom.

Knowing she always wanted to run her own business, Cynthia started her career at NASA Johnson Space Center in Houston, Texas as a human factors engineer, working with the space station program where some of her work is still flying in space, assisting the crew it their missions. Michael notes the space station as an environment where the margin of error is small, and the consequence of error is huge to which Cynthia describes them as one of the most hostile environments you could ever have to design for and in the most stressful safety type environment.

Digging right in, Michael asks the question which is likely to be on most listeners minds – what exactly is “human factors?” Cynthia describes human factors as an extremely broad science that deals with how people interact and perceive their environment, the things they use in that environment, and also how they interact in work with other people. She goes on to boil it down to two things:  1. helping people optimize what they do well, whether it’s through design or understanding of human behavior, and also your physical body shape and limitations and, 2. mitigate what we don’t do well to avoid risk of injury or human error. For example, she describes driving perception, where a lot of people have issues on the roadway taking turns, so it is considered a very high cognitive load task. The human factors look at the process and procedure that the person took in taking a turn, the visibility of oncoming traffic, what that person or reasonable driver could have been able to see, and if all conditions were perfect, did they take the right steps.

Michael and Cynthia continue to explore examples and how they determine these scenarios retrospectively. It’s interesting to hear how her firm, Sophic Synergistics, doesn’t do accident reconstruction, but rather often works extremely close with the accident reconstructionist on the case. Cynthia describes her process of going out to conduct a site visit in order to look at the environment, the design of the roadway, where the vehicles were, and the vantage points for all the drivers or entities involved, including pedestrians, which establishes what everybody could see from their vantage point in a reasonable fashion. From there, she’s looking for the best line of facts which line up in corroboration with each other and which make the most sense in terms of probability based on what you know as human factors. Examples of this would be whether there is a question of reaction time, perception, performance, or if speed was involved or not. She describes it as dissecting the actions, behaviors, as well as the cognitive processes, to know what was possible or what wasn’t, based off the actual physical environment. In other words, it leads to understanding what the facts are telling you, and where they align and where they don’t.

To understand more on how this might work in other types of cases, Cynthia describes a product liability case which involved a consumer product marketed to adults but ended up being used by children. She describes the product’s design as having been so attractive to little children that the children ended up becoming the primary users despite all the company’s efforts to say this product isn’t for kids. She goes on to describe how labeling is also hard to use as a strong enough warning because we, as human beings, are bad at seeing risk and how it pertains to us, making it very difficult to convince people via labeling. A great example Michael brings up of how those risks impact our behaviors is wearing your seatbelt, because there have always been consequence of dying, looming among us all if we don’t wear our seatbelt, but it wasn’t until laws were passed which extended the consequence to something as simple as getting a $200 ticket became associated with it, sparking more people to relate to it. Cynthia goes on to explain why this example worked saying “you need to believe the consequence, and if the consequence has never happened to you or you’ve never known someone to experience it, then you don’t really think it will happen to you.” IE: Perhaps you might not know someone who has died from not wearing their seatbelt, but you likely have experienced being pulled over, or know someone who has been, making the $200 ticket a more “real” potential consequence.

Michael and Cynthia continue to explore several other examples of human factors and how they become introduced in courtroom cases, as well as the many other areas Cynthia’s full-service human factors consulting firm works with using human factors in a wide variety of other industries. The detail to which they discuss human factors in this episode goes well beyond the surface and provides a great understanding in how they play a seemingly granular role with potentially momentous impacts … not unlike how they pertain to space stations.

 

BACKGROUND

Cynthia Rando is the Founder/CEO of Sophic Synergistics, LLC, a Human Factors consulting firm that is focused on optimizing human performance and experience in any environment- Building Better Businesses by Design.TM. Cynthia introduced the SOPHIC Conceptual model to the field, a model that utilizes human factors/human centered design as a profitable business model and strategy.

She has spent 17+ years in the field of Human Factors Design including 12 years at NASA’s Johnson Space Center in Houston, TX. During this time, she provided extensive leadership to the organization addressing several critical areas in Human Factors and Human Centered design including: user interface design, ergonomics, safety and risk mitigation strategies, usability and user experience, accident investigation and root cause analysis activities.  During this time, she was instrumental in spearheading several culture change initiatives and innovative solutions for the agency including: the U.S. Governments’ first use of crowdsourcing as a disruptive business model and the development of the Center of Excellence for Collaborative Innovation and the NASA Human Health and Performance Center.

Cynthia is a Certified Human Factors Professional and the Vice President of the Board of Certification in Professional Ergonomics. She received her B.S. and M.S. in Human Factors Engineering from Clemson University and an MBA from Northeastern University.  She has served as an associate professor at University of Houston Clearlake providing instruction in Human Factors and Ergonomics course material.  Currently, she provides Human Factors consultation to the Texas Medical Center Innovation Incubator assisting medical device and software startup companies.   She also serves on the board of advisors to ORintel for Human Factors and Ergonomics.

33 – Julian C. Gomez – Autonomous Vehicles: People v. Machines

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In this Trial Lawyer Nation podcast, Michael Cowen sits down with automotive products liability attorney, Julian C. Gomez, to discuss his expertise on product cases, specifically dealing with autonomous vehicles (AKA: Robot Cars). Most attorneys can relate, but the gist of every other talk Michael has ever heard on this topic, before Julian’s, was that we’re going to get robot cars, they’re never going to crash, and they’re going to put everyone out of business in 5 years. This is certainly what the automotive industry is trying to promise, but the data we have to date suggests otherwise.

Julian’s beginnings, getting into the field of automotive product cases, started back when he clerked for a judge who was the first in the country to try a Ford Explorer/Firestone case. He was able to sit through the trial and learn from some of the best lawyers in the country, which sparked his interest and set him on this path. When Julian started doing automotive product cases, he noticed the engineers were starting to address the legal issues as opposed to the engineering issues behind them. He points out that the engineering is really not all that difficult – the vehicle uses data gathering devices, puts the information into a data processor, which processes the data based on an algorithm, then an answer or result is spitting out, and makes the vehicle do something. Getting too far into the details can sometimes overcomplicate things, which Julian compares to the area of autonomous vehicles and states “I don’t have to be a computer engineer, to know that my computer is broken or to know that it’s working.”

Julian then describes the different levels of crash avoidance technologies (1-6) to include all sides of the vehicle along with the various types (signaling warnings to taking full-blown actions with the vehicle). He goes on to talk about how the levels start to gray out based on human data input as well as how there really are no “driverless” vehicles on the road today, despite what you hear on the news. He also discusses a recent AAA report addressing the confusion regarding the different types of autonomous systems due to the industry, and manufacturers, because there is not a standardized naming structure for these systems.

Interestingly, Julian explains the current way they are measuring the level 3-5 type autonomous vehicles is through disengagements, where the human driver has had to take over the car’s actions instead of it driving itself. In comparison, Apple had roughly 1 disengagement every 1.2 miles whereas, on the opposite end of the spectrum, Waymo had roughly 1 disengagement every 10,000 miles. And while there is a huge disparity between the top performers and the bottom, and numerous tragedies throughout the industry, Julian points out the real problem is there haven’t been enough vehicle miles driven to know how safe they are going to be. He also talks about the millions of vehicle miles driven each year compared to the thousands of deaths that occur on the road, and then extrapolates the data from when Uber had its recent fatality, based on the number of vehicle miles driven by autonomous cars at that point, to determine we would be experiencing around 1.6 million deaths each year. He brings this point home by stating even if you cut that number in half multiple times, it’s still much more than what is happening today on our roads.

Another problem Julian points out is the conflicts that occur between an objective algorithm system in the computer within the car working with a human subjective system. He gives a great example of how we’ve all seen cars, even before we started driving, interact in different ways when the driver is planning to turn right (IE: roll slowly through the light, even if it’s technically not the correct way). As humans, we are able to gauge how much space/time we have between our vehicle and the vehicle turning in front of us, whereas autonomous cars look at it from the standpoint of what the rule is and how it will obey that rule.

Michael points out how the computers can only do what they are programmed to do, making the job of the engineers to think of every possibility and then the safest possible outcome for each of the scenarios unfathomably enormous. Julian notes that as humans, the second most common function our bodies perform (breathing being the first) is seeing. We have been “seeing” and processing things through our eyesight for our entire lives, since day one. Some even suggest for a computer to process the amount of data we have seen in our lives, the computer would be the size of a warehouse, much less the size of a car, or the size of a computer in a car. Julian also discusses the responsibility to predict the unknown, which is nearly impossible, as if to say “tell me everything you don’t know.”

Michael and Julian recount the unfortunate incident in Arizona with the self-driving Uber car, the details of which are likely not what you might have heard previously, nor are they what you might expect (hint, hint – the frontal collision system was turned off, but by whom? Listen to find out). Also, perhaps somewhat shockingly, was the fact that the case was settled in 10 days, which Julian notes, might give you a sense of how Uber felt about their culpability in the case. Michael and Julian also discuss the perceptions of the “auto-piloted” cars as set forth by the marketing departments of the vehicles and how they are not exactly in line with what the cars are actually equipped to do.

The podcast concludes with Julian revealing his process for evaluating which product liability cases to take on as well as the “why” behind them versus simply going after damages, the results of which could do more harm to the legal industry than good when the wrong type of cases are pursued. They also make some predictions as to the future of mass-produced autonomous vehicles and where they’ll likely be used. As this technology continues to evolve, this episode drives home (no pun intended) the vast areas of the unknown in the auto industry in regards to where blame should be placed in such an environment where humans are sharing responsibility with computers, along with the engineers and companies who design them, to keep our roadways safe for everyone.

“Please note the TLN19 discount code mentioned in this show has now expired.”

 

BACKGROUND ON JULIAN C. GOMEZ

Julian C. Gomez is an attorney in McAllen, Texas. Julian was raised in South Texas. Julian is a ninth-generation Texan and his family still ranches on their original Spanish land grant. Julian graduated from Texas A&M University with a degree in Agricultural Economics and was a member of the Corps of Cadets while at Texas A&M.

After graduation, Julian spent time on the floor of the Chicago Mercantile Exchange as an analyst in the cattle futures and options pits. Julian graduated from the University of Houston Law School in 2000. Julian was a law clerk for Filemon Vela, United States District Judge, Southern District of Texas, Brownsville Division and a law clerk for Reynaldo Garza, United States Circuit Court Judge, Fifth Circuit Court of Appeals. After his clerkships, Julian founded The Julian C. Gomez Law Firm and has practiced there since.

Julian has a national and international practice focusing primarily on catastrophic product liability and negligence cases, mass torts, and contingent commercial litigation. Julian is a past Chairman of the American Association for Justice’s Products Liability Section (the largest organization of plaintiffs product liability attorneys in the U.S.); on the executive board of and the vice president of continuing legal education for the Texas Trial Lawyers Association, on the board of directors of and co-chair of continuing legal education committee for the Attorneys Information Exchange Group (the largest organization of plaintiffs automotive product liability attorneys in the U.S.); has served on plaintiffs’ committees in national mass tort litigation; is a graduate of Gerry Spence’s Trial Lawyer’s College; is a graduate of the American Association for Justice’s Leadership Academy; is the special liaison to the National Highway Traffic Safety Administration on behalf of both American Association for Justice’s Products Liability Section and the Attorneys Information Exchange Group; regularly speaks at international, national, statewide, and local continuing legal education courses on topics ranging from federal jurisdiction to products liability; is the 2017 Men’s 40-44, –69k Texas Weightlifting Champion; and has a 3:45 marathon time.

Julian is a U.S. Coast Guard licensed captain, is on the board of directors of the USA Weightlifting Foundation (the foundation for United States’ Olympic weightlifting athletes) the board of directors of McAllen Educational Foundation (the foundation for the McAllen Independent School District), and the board of directors of the Texas International Fishing Tournament (the largest fishing tournament in the State of Texas). In his free time, Julian loves spending time with his number one legal assistant, his daughter, Averri; and is an avid outdoorsman, rancher, photographer, snow skier, and tarpon fly-fishing angler.

For more information on Julian C. Gomez visit his website at https://www.jcglf.com/

15 – Phillip Miller – Understanding the Minds of the Jury

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In this Trial Lawyer Nation podcast, Michael Cowen sits down with author, trial consultant, and lawyer Phillip Miller from Nashville, TN.

Oddly enough, Phillip never planned on being a lawyer, being raised as a “military brat” traveling the country with his family that had a background in medicine in the military. It was actually the misfortune of dealing with attorneys in the wake of his father’s unfortunate passing, and subsequently, his mother passing 11 months later, which led him to want to go to law school at night while working during the day as a systems analyst. His practice started from humble beginnings to the point where he was paying overhead with no cases and not really knowing anyone in the field. However, his first case, which happened to be a car wreck, helped him to see his future in personal injury law.

Phillip credits his path to early success to his emphasis on education and taking as many CLE courses as possible. So much so that he began to have as much knowledge as those who were teaching the courses and soon after found himself invited to be on faculty with ATLA, which propelled his learning even more. Phillip notes that you don’t just get invited and start teaching. You first start out by writing a paper on the subject matter, which led to him reading more and becoming exposed to other great lawyers, and the cycle continued to help make him a better lawyer too. Michael also recalls a similar feeling of learning more from doing research and writing papers than from going to lectures to hear others speak on a topic.

Phillip discusses his views on learning from others and says that if you only talk with those who are practicing the same things in the same area, you’ll likely turn out to be just like them. Whereas he has sought to talk and learn from people from all over the world, just to get a different perspective on how others try those very same cases and continue to work cases from all four corners of the country and everywhere in between.

When asked by Michael about his approach to cases when he gets brought in, Phillip sites having worked with and picked up methodologies from Rodney Jew, like becoming an expert in taking depositions and the strategy behind them. As a great example of this, Phillip talks through the idea of “jury proof,” which goes beyond just the duty of breach, a duty of causation, and damages line of questions and instead delves into other questions that, if aren’t explored, resulting in a jury filling in their own answers. In other words, thinking beyond the obvious questions and answers that will help to win your case and looking at the case through the lens of a defense juror. Phillip goes on to say that these techniques are great for finding the “land mines” which could potentially damage a case. Then taking it a step further to use focus groups to help prioritize those detrimental pieces of jury proof, which helps to set up cases to be tried in an order geared towards a jury.

Phillip continues to talk through these “land mines” and the idea of working through the “bad” facts of a case to make them irrelevant or immaterial to the case, which sometimes includes just accepting them and moving on. He also notes that this does not always come easy to the plaintiff’s lawyers who are used to fighting for their client.  Michael also points out (from something Phillip mentioned earlier in the day) that juries tend to make the trials about what you take time to make them about; so when the defense has something bad for your case and you spend time-fighting about it, you end up making the focal point of the case more about that item.

The episode concludes with a discussion of the 5 things Phillip has learned about focus groups and juries and their significance to every case. He even gives some great insights on a product liability case involving talcum powder he worked on recently that really drives one of those jury lessons home.

 

Background on Phillip Miller

Phillip is nationally recognized for his work as a deposition/trial strategist and has been hired by firms in 30 states and the District of Columbia to help them prepare their biggest, most significant cases. Phillip maintains an active practice in Nashville, TN. He has been certified and re-certified as a Civil Trial Specialist, he is AV rated, and has been designated as a Super Lawyer repeatedly. His innovative approaches and case strategy work, including techniques like the “Miller Mousetrap”, have earned him recognition among trial lawyers nationally. Although 70% of Phillip’s time is doing deposition/case strategy and focus groups for other firms, Phillip has personally tried to a verdict both a tractor-trailer case and a school bus case within the last 12 months.

His two most recent books (co-authored with his friend, Paul Scoptur) are “Advanced Deposition Strategy and Practice” released by Trial Guides in July 2013; and “Focused Discovery” in the newly published Anatomy of the Personal Injury Lawsuit, in 2015.  His newest book “Focus Groups – Hitting the Bullseye” is published by AAJ Press and released in January 2017.

For more info on Phillip Miller, visit:

https://philliphmiller.com/

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