Radio Show Attorney

22 – Paul Byrd – Understanding Conservative Jurors

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In this episode of Trial Lawyer Nation, Michael Cowen sits down with author, speaker, and seasoned trial lawyer, Paul Byrd from Arkansas for a deep dive into the minds of conservatives and what we can do to better communicate with them on juries. Kicking things right off, Michael and Paul agree that the likelihood of having a jury panel made up of only liberals is not only low, but likely not preferential either as Paul points out and sets the tone for the conversation.

As a self-proclaimed “Republican trial lawyer,” Paul talks about the juxtaposition of not being felt trusted in trial lawyer arenas because he is a Republican, while also not feeling trusted in Republican arenas because he is a trial lawyer. This is something he never really understood in terms of why they didn’t seem to fit together as he feels strongly there are many values that cross over between the two and has led to his study of conservatism in the courtroom.

Like many trial lawyers, Paul’s desire to reach jurors, and to reach voters who wanted to vote in the courtroom forum, has always been met with some resistance from those who are fiercely independent. Paul’s in-depth understanding of the interesting history of the Scotch/Irish in America, and how it paved the way for conservative thinking, helps to lay the foundation of working with conservatives in the courtroom. When asked how trial lawyers might learn from and relate to people who may have a more conservative value system than themselves, Paul suggests talking to experts in the field as well as using solid focus groups. Michael adds, from his own experience, that they can also take an introspective approach and work on themselves, learning to talk to people, listen nonjudgmentally,  and understand that conservatives are still good people by and large. In other words, take the time to listen to people, even if it’s not what you want to hear, in order to gain perspective.

In this day and age, it is hard NOT to bring up the topic of social media, given the politically charged climate on social platforms, to which Paul brings up a great point that although they tell jurors not to look on social media to find lawyers involved, they commonly still do. He goes on to describe how people will typecast you as much as you typecast them with the posts they may find in your social accounts, so it is likely best to stay away from partisan posts in today’s world. Michael adds how he tends to avoid posting political things to his feed as some juror could potentially be immediately turned off by it regardless of which side of the issues he’s on. He also goes on to say if you can start the conversation with an open mind, you may be able to convince someone one way or the other, but if they are turned off before you begin the conversation (perhaps by seeing a politically-charged post), the likelihood of there being any movement is slim.

Paul points out how some of the biggest verdicts have come from the most conservative juries and sometimes it simply becomes a matter of helping your jury understand what the rules are. He gives a great example regarding a case which involved horseplay around a pool where a man was pushed in, broke his neck, and drowned. His focus groups were leaning one way with the understanding that the man who was pushed in was the jokester; but once the rules were laid out by way of the pool manufacturer’s safety warnings and revealing the pusher was the homeowner, the case became much easier to solidify because the group understood what they were defining as the rules.

Michael asks Paul if there are any buzz words or behaviors which can alienate a conservative jury. To which Paul expresses how it can actually work against you if you focus too much on trying to make jurors feel sorry for a client because it was a horrific injury. He goes on to say that jurors have become hardened over the years having been exposed to so much that empathy or sorrow will not carry a case alone anymore. You really have to find the rule or the “why” moment in a case of how the wrongdoer should be held responsible.

The conversation culminates in a discussion about how “non-economic damages” are viewed by jurors and the conservative spin which has likely brought us to where we are today. Paul first directs his attention to the argument regarding the caps placed on non-economic damages in some states and how some view these decisions as unfair toward particular sets of people (ex: stay at home parents) where there is no pattern of lost wages or income. He then digs deeper in a couple of examples to really make you think a little harder about what’s “real” to those who have been catastrophically injured while using plain English to cut through partisan lines and strike the core of most every human. It’s truly fascinating how Paul thinks about these things and we were glad he was willing to share his thoughts and insights with us and the rest of the Trial Lawyer Nation.

Background on Paul Byrd

Paul Byrd has been representing deserving injured victims for almost 30 years.   After clerking for a trial court, Paul went into private practice in 1988. Paul’s practice has focused on civil litigation with an emphasis on representing consumers in product liability actions, both individually and in Mass Tort Litigation. He is the Immediate Past Chair of the AAJ Product Liability Section and on the Board of Governors of AAJ.   He has spoken on “How to Talk to Conservatives” all over the United States and has a current video on the topic published by Trial Guides.

In November of 2000, he was featured on the front page of the Wall Street Journal due to his work in the case of Brownlee/Whitaker vs. Cooper Tire and Rubber Company.  He also appeared in a Dateline NBC documentary regarding the same case in January of 2001.

Paul has also represented farmers in agricultural litigation regarding genetically modified crop contamination that had global as well as national and local implications.

Paul is a past President of the Arkansas Trial Lawyers Association. His message to his fellow members as President was “You went to law school to make a difference!”.

In 2012, Paul was a co-recipient of the Outstanding Trial Lawyer of the Year Award from the Arkansas Trial Lawyers Association.

He is the managing member of the Little Rock, Arkansas office of Paul Byrd Law Firm, PLLC.

He has an “AV” rating in the Martindale-Hubble Legal Directory, has been recognized by the Mid-South Super Lawyers, and is also a life member of the Million Dollar Advocates Forum.

Affiliations

  • Arkansas Trial Lawyers Association
  • American Association for Justice
  • American Bar Association
  • Arkansas Bar Association
  • Pulaski County Bar Association
  • St. Thomas More Society

15 – Phillip Miller – Understanding the Minds of the Jury

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In this episode of Trial Lawyer Nation, 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/

13 – Ben Glass – Great Legal Marketing

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In this episode of Trial Lawyer Nation, Michael Cowen sits down with the great legal marketing mind and Owner of Great Legal Marketing, LLC, Ben Glass. As an attorney and owner of his own law firm, Ben Glass Law, Ben shares a unique insider’s perspective on what marketing works and what doesn’t in the legal industry that many attorneys can appreciate.

Having started his legal career like most young attorneys do, by working in someone else’s firm, Ben recalls that first big step when he ventured out and started his own firm, remembering that he was good at trying cases but suffered, as most do when they start a firm of their own, in bringing on new cases. This led him to start thinking about how to attract clients without breaking the bank, noting that of course you can throw all kinds of money at your marketing, but he knew there had to be a better way. At that point, Ben began to study the impacts of marketing on legal firms and more specifically, looking outside of the lawyer world to what other successful businesses were doing and ultimately finding that achieving results didn’t require being the highest spender.

Michael and Ben discuss the critical stages of legal marketing, not only deciding what kind of practice you want for yourself but conversely, what type of cases you don’t want and getting over the mental hurdle of turning those cases away. The views from both Michael and Ben, looking back at their own implementation of these steps, are surprisingly similar and fortunately not as “scary” as either of them may have thought they were initially. Ben also tends to remind the attorneys he works with that there is no need to succumb to any peer pressure on the types of cases they need to take on. Similarly, Michael adds his own unique perspective on his firm’s transition to becoming one that only accepts the larger cases that they can add value to in that suddenly (along with his experience as an attorney) he became the one other attorneys now refer those larger cases to consistently, versus the smaller fender bender cases, just by the acknowledgment of the types of cases he will and will not accept. Furthermore, Ben explains, having a referral relationship with someone who specializes and loves taking on the types of cases you don’t, can also be highly beneficial to your practice as well as to the clients that are seeking your expertise in helping their case. Essentially creating a win-win-win marketing strategy by setting the standard on the cases that come into your firm and having a plan to guide the rest of the cases in the right direction toward those who are better equipped to provide value to them.

In digging a little deeper into legal marketing, Ben points out that many clients have never really given a thought about finding a lawyer prior to actually needing one – usually no real knowledge of what might constitute the best attorney for their situation, no experience in dealing with claims adjusters, etc… Many times, life is just moving along happily until that disaster strikes, totally disrupting their life, and thrusting them toward suddenly needing an attorney but, when that time comes, they don’t necessarily care (in Ben’s opinion) how many years you’ve been practicing law, or how many awards you’ve had, but rather the fact that they have a problem to solve – doctors are calling, insurance adjustors are calling, their family is giving advice on what to do, and they don’t know what to do. This is where Ben’s informational marketing comes into play, by providing useful information to help those people with what they need to know now, versus the other attorneys who are basically shouting “hire me” and “look at all my awards.” This dissemination of useful info, along with MANY other legal marketing topics Ben discusses with Michael, helps to build trust with you and your firm when trying to appeal to prospective clients in their unexpected time of need. Michael also relates this tactic to his own firm’s dissemination of valuable information to other lawyers through presentations well beyond the local bar association meetings others might be waiting to get invited to.

Michael wraps up the interview with a brief discussion on the tools and resources Ben offers through Great Legal Marketing, which Ben admits, no matter where you are with your practice, getting more leads and getting more cases is frankly not that hard or expensive once you know what to do. Ben is truly a talented resource to the legal community and his impact spreads far and wide to all those we are all passionate about serving.

Background on Ben Glass

Ben has spent his career practicing law in the courtrooms throughout Northern Virginia. He is a nationally-recognized, board-certified personal injury, medical malpractice, and disability insurance attorney in Fairfax, Virginia. He graduated from George Mason University School of Law in 1983 and has devoted his career to representing individuals against the insurance companies.

Through Ben’s experience in testing various marketing techniques for his own firm, he has discovered what truly works and has implemented his knowledge into the creation of Great Legal Marketing in 2005. Hundreds of lawyers in the United States and Canada have already joined Great Legal Marketing and are watching their practices take off.

For more info on Ben Glass visit:

https://www.greatlegalmarketing.com/bio/ben-glass1.cfm

09 – Artemis Malekpour – All-Inclusive Trial Strategy

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In this episode of Trial Lawyer Nation, Michael Cowen sits down with a nationally renowned trial consultant, Artemis Malekpour whose strength lies in her trial litigation strategy consulting. She describes it by boiling it all down to, “we help your case.”

However, the sheer magnitude of the scope of her work ranges from before you even file a case, to the end result, and everything in between, including focus groups, trial strategy, mediation strategy, discovery, pre-suit issues, voir dire, and opening statements to name just a few. Artemis describes her entry into the profession as coming initially from a background of psychology and starting down the pre-med path when realizations came to her, along with a pretty dramatic chain of events, that aligned her studies with a passion toward the legal industry. Her dilemma with the situation turned into learning more and taking in feedback from many different subsequent cases and being introduced to them from the inside, which eventually confirmed she was heading in the right direction for herself.

Empathizing with Michael, who also has a psychology degree, Artemis describes several of the cases she’s been through where the emotions start to take over and the desire to help everyone kicks in. Both Michael and Artemis give several examples of intake processes now firmly in place to help avoid accepting cases which are not suitable to take on both for the good of the firm or for the good of the client.

Artemis also opens up about her focus group experiences across the country, averaging sometimes around 40 per year, and divulges some of the trends she is seeing as a result of our current political climate. An interesting moment is a conversation between her and Michael about the power of silence, be it in the courtroom or with a focus group, and how it can be used to benefit your case. And while this technique and others are discussed, Artemis reinforces the importance of understanding there is no “magic formula” for success and describes what she believes the best trial lawyers do after trial.

The insights Artemis shares throughout the conversation are not just insightful, but practical toward any case. Michael jokingly refers to these insights as a “list of the things we do to screw up our own cases.” But we also know even that depiction is sometimes an understatement, which is why talking with Artemis was such a pleasure in this episode. She tells it like it is, and we all come out better on the other side.

Background on Artemis Malekpour

Artemis Malekpour is a partner in the litigation consulting firm of Malekpour & Ball.  With a background in psychology and psychiatric research, she specializes in focus groups, case strategy, damages, and jury selection.  Artemis did her undergraduate work at the University of North Carolina at Chapel Hill, then earned a Master’s in Healthcare Administration from UNC’s School of Public Health and a law degree with honors from Duke University.  She has consulted on a wide variety of cases across the country, with a knack for identifying potential landmines, incorporating her knowledge from years of watching jury deliberations and talking with jurors.

For more info on Artemis Malekpour visit https://www.trialguides.com/authors/artemis-malekpour/

04 – Tim McKey – The Business Side of Practicing Law

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In this episode of Trial Lawyer Nation, Michael Cowen talks with Vista Consulting’s Owner, Tim McKey, who has been consulting on operational matters with successful plaintiff law firms since 2008.

Tim’s CPA background steers his focus toward numbers and metrics but he concedes that there is a lot more that goes into running a successful practice such as culture and human resources, which allows him to approach firms from a holistic stance. As a client of Vista, Michael shares that he has a personal appreciation for Vista’s value to plaintiff firms, which he also acknowledges has allowed him to sleep better at night knowing the firm runs smoother than ever.

Michael explores with Tim his launching point in working with plaintiff firms; and discovers the strategic decision Tim made after owning his own CPA firm, which drove him to work with attorneys in a big way. Tim also describes his passion for helping firms define success and desire to help CHANGE the score instead of just KEEPING the score as a substantial motivation. During his transition to the consulting world, Tim lightheartedly recalls how similar the process turned out to be for his first two clients; those being a plaintiff’s attorney and business at the polar opposite end of the spectrum (tune in to hear what the other business was). The process Tim uses to examine and analyze a firm is noted to work regardless of years in practice and focuses specifically on tightening up potential deficiencies within the firm and its client acquisition practices.

While being empathetic to the fact that attorneys, in general, are not introduced to business practices before setting out to run their own law practice, Michael recalls his early days in another law firm where trial and error was the modus operandi of their operations, long before he was introduced to Vista’s techniques. The difference between effective and efficient systems and processes are the cornerstone to what Tim advises throughout this episode as he offers listeners insights into breaking down their firm’s data to a dashboard view of the practice and what to do next.

This podcast concludes with Tim explaining things a step further to amplify the importance of having a project point person throughout the process of using what he calls the “public restroom theory.” It’s a wild analogy, but it hits home tremendously to anyone who tends to have lists of 100 “great ideas” being worked on by the firm. And for anyone who has felt the pain of turnover in their office, Tim talks about the mentality of “hire slow and fire fast,” along with the tools, training, and expectations being a key part in the onboarding process to set an employee up for success.

Background on Tim McKey

Tim co-founded Vista Consulting in 2009 with a vision to help plaintiff law firm owners reach their full potential. Tim has traditional CPA experience with local, regional, and national CPA firms. However, it is through Tim’s prior consulting practice that he found his passion. He has worked with many business owners assisting them with defining and attaining success in their business and personal lives.

Tim’s experience and interest allow him to assist Vista clients with developing a realistic vision of their firm into the future, creating a strategic plan to achieve that vision while working with firm owners in designing their desired lifestyle. Tim assists his clients in reviewing firm tax entity structure and accounting systems analysis, and financial reporting.

For more info on Tim McKey visit https://www.vistact.com/meet-the-team/tim-mckey.

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