representative jury

74 – Ed Ciarimboli – Masked Justice: Part 3

In this episode of the Trial Lawyer Nation podcast, Michael sits down with fellow trial lawyer Ed Ciarimboli from Pennsylvania. Ed is part of the elite class of lawyers who have been able to take a case to trial in the COVID era. And with the final witness testimony being so monumental to the case that they settled immediately after he left the witness box, this trial story is one you need to hear to believe!

They begin with a brief discussion of Ed’s background and how he started trying cases. A partner at a 12-lawyer and 3 location firm, Fellerman & Ciarimboli, Ed mainly focuses on commercial motor vehicle cases. He got into the AAJ speaking circuit about 9 years ago, where he began to really hone his skills as a lawyer. It was a couple of years after that when he was told he needed to become great at trying cases. When Ed asked why, the other lawyer responded, “Because you’re the worst lawyer I’ve ever seen at settling a case.” So, Ed took the advice and has since focused his energy on being as comfortable as possible in the courtroom.

When asked to elaborate on what he did to develop his skills as a trial lawyer, Ed insists the biggest factor was his investment in his education. He urges young lawyers to do more than join a webinar- they should go to conferences and workshops to truly focus on the different aspects of trial and HOW they’re doing it. Body language and movement are crucial to a lawyer’s performance in the courtroom, and after working with a long list of consultants and gurus on these topics, Ed encourages everyone who wants to be a great trial lawyer to put the effort into this.

He then clarifies that this doesn’t mean following the dogmatic approach of one pro- it’s about learning the fundamentals (taking depositions, cross-examinations, etc.) then studying different approaches to storytelling and choosing the best one for your particular case.  This approach requires much more work than a cookie-cutter strategy, but both Ed and Michael agree that it’s well worth the effort.

Michael then starts to dig into the facts of Ed’s case, which was unique and incredibly tragic. Ed explains how the defendant company purchased a huge molding machine from a broker. The defendant company signed the paperwork and assumed responsibility for the machine, then hired a crane company for the rigging and transportation of said machine. The crane company was told nothing about the details of the machine, notably the 55-gallon drum of hydraulic fluid still inside the machine. In the process of moving the machine onto the flatbed truck for transportation, the hydraulic fluid sloshed to the side and caused the machine to tip over onto Ed’s client, killing him instantly.

Ed then explains how they ended up suing the company who purchased the machine and shares how his extensive work on commercial motor vehicle cases set him up for success on this case. Ed knew the Federal Motor Carrier Safety Regulations “100 million times better than the defense,” which he used to his advantage in placing the blame on the defendant company whose only real defense was, “We hired this company.”

Michael continues the conversation by asking Ed how jury selection was handled. Ed shares how voir dire was conducted in a large old theater instead of a courtroom in order to allow for safe spacing between the potential jurors. And while he admits he was more nervous for this jury selection than any he’s ever done before, the process went incredibly smoothly. He gives high praise to the judge, his jury consultants, and the jurors themselves, stating, “I truly believe we won this case in jury selection.” He also notes that the demographic composition of the jury pool was not skewed, something which will surprise listeners who believed COVID would cause people to resist sitting on a jury.

Ed then shares the setup of the courtroom, which included the jurors sitting in the gallery with two large screens in front of them. He explains in-depth the lengths he and his team went to effectively present to a jury largely spaced out, including the widespread use of visuals that any trial lawyer trying to get back in the courtroom needs to hear.

Michael then digs deeper into Ed’s sequencing of the case and presentation to the jury, which is something he did with incredible craft and thoughtfulness. He began by simply stating, “George James went to work one day and never came back. Why?” before introducing the jury to the company, who was very experienced in dealing with hazardous materials. He then boiled this complex case down into one simple graphic of the transportation cycle, highlighting the defendant company was both the shipper and the receiver of the machine.

Ed then called the corporate representative as his first witness, who did “TERRIBLE,” and came off smug, angry, and unwilling to accept the responsibility which was so clearly his. Next was their expert, then the moment which Ed was most concerned about, the client’s blue-collar co-workers from the crane company. His fears were quickly abandoned as these witnesses talked plainly and honestly about their lack of experience with hazardous materials, further securing the blame on the defendant company who assumed the responsibility. But the most powerful moment of all was seeing the way they all talked about Ed’s client and how amazing of a person he was, causing many of them to break down on the stand.

As the trial went on, the defense kept offering more money to settle the case, but it was nowhere near enough. Ed had rested and was ready for closing until the defense called their final witness, an economic expert. While Ed had chosen to leave economic damages out of the case completely, the defense thought it wise to have their witness testify that based on the client’s income and life expectancy, his life was only worth $61,000.

Considering the client was such an upstanding person that his EX-WIFE was one of the key damage witnesses, this was a shocking move. After Ed’s brutal cross-examination of this witness (which you need to hear to fully appreciate), he was rushed in the hallway by corporate counsel eager to settle for the amount he wanted. Ed agreed and the case was settled right before closing.

While Ed’s trial story and success in the age of COVID are admirable, Michael wants to know – would Ed recommend other lawyers to push their cases to trial, or should they wait until COVID has passed? Ed simply states, “I say do it.” It’s scary filled with uncertainty, but as lawyers, we are not doing our jobs if we are not pushing our cases.

As a follow-up, Michael curiously asks, “What about if your only option is a Zoom trial?” to which Ed is a bit more hesitant. They go back and forth discussing the merits and limitations of Zoom trials, which Michael is set to partake in starting February 1st. Ed praises Michael for taking this leap and wishes him luck in this upcoming trial.

This podcast episode also covers why sequencing your witnesses properly is so important, using experts, how Ed found his “best jurors,” the details of the FMCSR’s on transporting hazardous material, what the jurors said when Ed reached out to them post-trial, and so much more. This is truly an inspiring trial story that you DON’T want to miss!

 

Interested in hearing more COVID era trial stories? Check out our other Masked Justice episodes:

 

Guest Bio:

Attorney Edward Ciarimboli is a founding partner at Fellerman & Ciarimboli Law PC. He graduated from Wilkes University with a dual degree in political science and engineering and applied science. While at Duquesne University School of Law, he was admitted to the Order of Barristers for Excellence in Courtroom Advocacy and was named a national semi-finalist in the American Trial Lawyers Association Moot Court Competition.

After receiving his Juris Doctor, Attorney Ciarimboli served as a law clerk to the Luzerne County Court of Common Pleas and the U.S. District Court for the Middle District of Pennsylvania.

Attorney Ciarimboli concentrates his practice on trucking and auto collision and medical malpractice litigation. He is active in many professional organizations, including the American Association for Justice, the Pennsylvania Association for Justice, and the Luzerne County and Pennsylvania Bar Associations. He serves on AAJ’s National College of Advocacy Board of Trustees and the Board of Governors for the Pennsylvania Association of Justice, donates to AAJ’s PAC, and is a member of AAJ’s Trucking Litigation Group; Motor Vehicle Collision, Highway and Premises Liability; Insurance Law; and Professional Negligence sections.

Attorney Ciarimboli has been selected for inclusion in the Pennsylvania Super Lawyers® list every year since 2008. He was named Top 40 Under 40 by the National Trial Lawyers Association and named to the Top 10 National Trial Lawyers’ Trucking Trial Lawyers Association. He was also named as one of the Nation’s Top One Percent by the National Association Distinguished Counsel.

In addition to his extensive trial practice, Attorney Ciarimboli frequently teaches lawyers across the country on both deposition and trial skills.

Attorney Ciarimboli is also an active member of his community. With his partner, Attorney Greg Fellerman, he began the Safe Prom Pledge in 2010 as a way to promote a drug-free and alcohol-free prom night for students throughout Eastern Pennsylvania. To date, they have spoken to more than 25,000 high school students on the dangers of driving under the influence of drugs and alcohol.

Attorney Ciarimboli lives in a 115-year-old farmhouse with his wife, Jennifer, their children, two dogs, two cats, countless chickens, roosters, and an occasional pheasant.

 

68 – Chris Madeksho – Masked Justice: Part 2

In this Trial Lawyer Nation podcast, Michael sits down with another trail blazing trial lawyer, Chris Madeksho. Chris recently received a $13.9 million jury verdict on a Mesothelioma case tried in person using social distancing and other safety measures. They discuss Chris’s background, the details and challenges of the case he tried, the safety measures taken, and the numerous strategies Chris used to win this fantastic verdict in the age of COVID-19.

Chris specializes in toxic tort and was introduced to the area by his late father, who worked in asbestos installation when he was young and went on to become a trial lawyer. He began his practice in Texas, but later moved his principal office to California due to Texas tort reform. As most great trial lawyers do, he then attended the Trial Lawyers College and began learning from the other great trial lawyers and scholars in the arena, citing Sari de la Motte, Eric Penn, Nick Rowley, Keith Mitnik, and R. Rex Parris.

Michael then asks Chris about the details of the case he tried. Chris’s client was a 68-year old Mesothelioma patient who worked as an asbestos installer from ages 9 to 19. Because of some criminal details in his background, Chris was forced to drop the loss of consortium claim and only request damages in personal injury, BUT was still awarded $13 million in non-economic damages alone.

With this impressive verdict, Michael asks Chris if the defense wanted to try the case or not. Chris responds with a resounding, “No.” In fact, they even opposed Chris’s waiver of jury when he attempted to get a bench trial. So Chris pushed forward, complied with the judge’s orders, and was completely prepared for trial when the time came.

Chris then explains how the jury summons and voir dire process was handled safely. The summonses were sent out via email and included COVID-19 hardship questions. He shares how we know our most dangerous jurors are people who are not afraid of COVID-19, but our second most dangerous jurors are people who are there who don’t want to be. Eliminating people who don’t want to be there was very helpful in that respect.

But, a jury summons by email has its downfalls. The biggest being that the demographics of the jury pool were not representative of the populous. The resulting jury was more affluent, more connected with technology, and more conservative than a typical King County jury would be. But as Chris puts it, “When you have a client who’s going to die if you don’t try the case now, you just do the best you can.”

After summoning the jury pool, voir dire was conducted mostly through Zoom with only two panels attending in person due to security concerns. These in person panelists were separated by a 6-foot spacer and their voir dire took place in a convention center to allow for safe distancing. While Chris believes he connected better with the in-person panelists, the resulting jury ended up being comprised of 14 virtual panelists and only 1 in person panelist.

The pair then move on to discuss Chris’s storytelling strategy. Chris explains how he’s worked extensively with Sari de la Motte and employed many of her Hostage to Hero strategies to craft his opening and closing arguments. He also emphasizes the importance of being “at ease” when speaking to the jury with a mask on. He shares the perfect analogy of being in a dark room where you can only see the other person’s eyes – you’re going to focus heavily on what you can see, so your eyes need to appear honest and relaxed.

Chris’s opening also focused heavily on the conduct of the defendant, a story he told by choosing the “villain” to be a corporate representative who is still alive. He decided to use her as the villain because she is more tangible to the jury than someone who may have done a lot of harm, but isn’t alive to pay for their wrongdoings. Chris and Michael then have a very insightful conversation on if the villain needs to be a person, or if the villain can simply be the organization as a whole – a subject discussed on this podcast in the past.

Michael then asks about how Chris told the damages story at trial, which Chris boiled down to “This is a man who worked his entire childhood. Now that he’s in his final days, he’s living his childhood for the first time.” He then shares how this powerful story was made stronger by getting the defense doctor to share the horrors of Mesothelioma – a useful strategy which every listener needs to hear.

The pair ends the episode with the defense’s shocking (and unsuccessful) closing argument. The defense lawyer basically said, “A lot of people are going to be dying painful deaths in this COVID era. They’re not getting any money.” As he said that, the jury set their tablets down and nobody wrote for the remainder of his argument. Chris agrees to share the transcripts for the full details, but the defense effectively ostracized themselves from the jury at this exact moment. While plaintiff lawyers everywhere have been concerned about this being used successfully against them, Chris’s experience shows it was ineffective.

If you’d like to reach Chris Madeksho, you can email him at cmadeksho@madeksholaw.com or visit his website at www.madeksholaw.com. He’s been kind enough to make himself available to speak with any plaintiff attorney who’s looking to get back in the courtroom and wants to learn from his experience.

This podcast also covers the intricacies of asbestos cases, the importance of putting your family first, working through personal issues with clients, Chris’s courtroom layout, trusting the jury, Chris’s advice for trial lawyers who want to improve, and so much more.

 

Interested in hearing more COVID Era trial stories? Check out our other Masked Justice episodes:

 

Bio:

Chris is licensed to practice law in three states – Texas, California and Washington State, and he has a national reputation for managing asbestos and other toxic torts. He has represented mesothelioma and toxic injury clients in courtrooms from New York to California, and from the Midwest down to Texas.  Chris is a graduate of the nationally-renowned Trial Lawyers College and is a fluent Spanish and French speaker.

In addition to trying cases for victims of cancer and toxic torts, Chris routinely tries cases pro bono for low-income families facing eviction in the Los Angeles area. He participated as trial counsel and adviser to tenants in the largest rent strike in Los Angeles County history. The tenants prevailed in their strike and the landlord eventually dismissed his eviction lawsuits after losing several trials. Helping his community is a passion for Chris.

Outside of work, you’ll find Chris spending time with his family — they especially enjoy gardening, exploring the outdoors, making music, and enjoying good food together. Chris’s dream is to eventually use his time and resources to reforest American ecosystems.

 

67 – Brendan Lupetin – Masked Justice: Part 1

In this Trial Lawyer Nation podcast, Michael sits down with trial attorney Brendan Lupetin out of Pittsburgh, Pennsylvania. Brendan, a self-proclaimed “trial nerd,” is one of just a handful of attorneys who has tried a case in the era of COVID-19, receiving a $10.8 million dollar jury verdict on his medical negligence case. They’ll discuss Brendan’s background, the details of the case, how he prepared, what it was like trying a case during a pandemic, and his advice for lawyers and courts across the country to start having jury trials again.

The episode begins with an overview of Brendan’s background and how he became the successful trial lawyer he is today. He explains how he began by trying about 10 bad cases where he lost “in brutal fashion,” and finally found his first victory with a $500 rear-end car case verdict. Since then, he’s focused on reading everything and anything he can on trials. Now, he’s tried 40 cases to jury verdict and has found great success in the last 10.

As a self-proclaimed “trial nerd,” Brendan spends most of his free time reading and studying the work of other great trial lawyers and legal scholars, citing Rick Friedman, Keith Mitnik, David Ball, Artemis Malekpour, Jude Basille, and many others. He and Michael discuss the difficulties of implementing all the trial theories and strategies available today, but Brendan explains how his approach is to blend them all together to find what works best for him. A sentiment echoed by Michael and certainly a recurring theme on the show.
Michael then asks Brendan about the details of the medical malpractice case he recently tried. While the difficulties of trying a case during a pandemic are apparent, Brendan insists his job was made easier by the fact that this was truly a great case. Brendan’s client, a 41-year old father and project manager, went to the hospital for an MRI. He had an allergic reaction to the contrasting chemical they injected him with. While the hospital had policies in place to protect patients in the event of an allergic reaction, none of those policies were followed and Brendan’s client was unfortunately left with a severe brain injury.

Michael then notes that Brendan ended up with such a simple theory, which Brendan explains was a long road to get to. They originally had 3 defendants, but after numerous focus groups and hiring John Campbell of Empirical Jury to run a study after Brendan “serendipitously” listened to his podcast episode 3 ½ weeks before the trial, they decided to drop one of the defendants because he complicated the story. Michael agrees that this was a smart move, quoting Rodney Jew by saying, “If you chase two rabbits, you won’t catch either one.”

Brendan also kept in mind Mark Mandell’s case framing theory throughout the trial and describes how he was tempted to dispute the defense’s timeline of events because he found they were about a minute and a half off. But after employing the case framing theory, he and his partner decided to leave that out because it drew away from the main focus of the case – “Policy violations caused delay, and delay is never good in an emergency.”

Michael then asks Brendan what else he’s learned throughout his study of advocacy that he used in the trial, to which Brendan simply replies, “everything.” He describes his journey to crafting the perfect opening statement, employing techniques from David Ball, Nick Rowley, Keith Mitnik, and many others. He also recorded the final product and shared it on his YouTube channel. It’s clear throughout the episode that Brendan is truly a lifelong learner and is constantly honing his craft as a trial lawyer.

After gaining insight into the case and Brendan’s trial techniques, Michael asks the question on everyone’s mind – What was it like trying a case during the pandemic? Brendan first gives credit to Judge Jackie Bernard and the court system for setting up an incredibly safe and effective trial plan, and emphasizes the need for more courts to follow suit and begin holding jury trials again.
The court began by sending out a questionnaire to potential jurors which asked hardship questions, immediately excluding anybody who had health concerns or was extremely uncomfortable attending a trial because of COVID-19. Voir dire was held in a huge courtroom with 45 people in the room, and 45 others in a separate room watching on video. The process was so streamlined and well planned that they were able to select the jury in less than four hours.

Once the trial began, this attention to detail became even more evident. Everybody wore masks for the duration of the trial, there was plexiglass around the judge and witness stand, and the jury was spread out around the room in a way so creative you have to hear it to believe it. By using these precautions, the trial went on without a hitch and with a significantly lower risk of infection than a traditional trial set up.

Brendan and Michael agree that without a significant threat of a trial, their big cases won’t result in a fair settlement. They discuss the immediate need for courts to find a safe solution to continue jury trials and the need for plaintiff lawyers to work together to persuade their courts to do so.

They end the episode on a surprising note. Brendan explains how everybody thinks trying a case during the pandemic is this crazy experience, but he said it really didn’t feel very different from trying a case in a courtroom you haven’t been in before. You always need to adapt to a new judge’s rules, a new courtroom set up, etc. This wasn’t much different than that. And by implementing the safety precautions Brendan described, courts around the country can begin to open and allow the pursuit of justice instead of pushing trials off further and further. As Brendan poetically put it, “Hope is not a plan.”

If you’d like to learn more from Brendan Lupetin, visit his firm’s website and subscribe to his YouTube channel.

This podcast also covers Brendan’s favorite closing strategy, obtaining a representative jury during COVID-19, the “freaky” accurate results of Brendan’s Empirical Jury study with John Campbell, and so much more.

 

Interested in hearing more COVID Era trial stories? Check out our other Masked Justice episodes:

 

Bio:

Brendan is a trial lawyer in Pittsburgh, Pennsylvania.  He focuses on medical malpractice, product defect and personal injury law.  He loves helping the people he represents and trying their cases to jury verdict when necessary.

Brendan is a trial nerd and truly enjoys reading trial books, studying trial videos and seminars, watching trials and “talking shop” with fellow trial lawyers.

The son of a doctor and trauma counselor Brendan learned early on the importance of compassion, empathy and to always stand up for what is right, no matter the consequence.

Following a four-year tenure as a scholarship swimmer, Brendan received his B.S. from the University of Pittsburgh in 2000 and his J.D. from the University of Pittsburgh School of Law in 2005.
During his career, Brendan has tried numerous cases of all types to jury verdict.  Over the course of the past several years, Brendan has obtained numerous multi-million-dollar verdicts for his clients – all of which far exceeded the highest offers of settlement.

What Brendan loves more than anything, however, is spending time with his wife and high school sweetheart Lacey and their three sons Nathan, John and Owen.

 

60 – Matthew Pearson – A New Era: A Look Inside the First Zoom Jury Trial

In this Trial Lawyer Nation podcast, Michael is joined by Matthew Pearson, the plaintiff’s lawyer in the highly publicized first Zoom jury trial in the country. They discuss the trial in detail including how Matthew’s case was selected, how a summary jury trial works, the jury selection process, case presentation, and what (if anything) Matthew would do differently.

The episode begins with a discussion of Matthew’s background and how he became involved in the nation’s first Zoom jury trial. He specializes in first party insurance cases in construction defect from the property owner’s side. Michael notes this is different from most of his other guests, but Matthew identifies some parallels in what he does with other plaintiff’s lawyers.

The case he tried by Zoom involves a commercial building hit by a hailstorm in Collin County, Texas where the insurance company did not want to pay out the claim. As part of Collin County’s ADR process, the parties must hold a summary jury trial before they are allowed a full jury trial. The goal is for a settlement in mediation after the summary jury trial. Matthew’s summary jury trial was originally set for July, but he was asked (or “volun-told”) to move it forward to May 18th and do it virtually. He was a little nervous, but excited overall for the opportunity.

Michael and Matthew then briefly discuss how a summary jury trial is nonbinding and has far less rules than a full jury trial. Each side has an hour and a half to put on their case, then the jury deliberates and comes back with a non-binding verdict. Both sides can then ask the jury questions about the verdict and their deliberation. Matthew finds this approach to be a great opportunity for feedback and to identify areas to improve should the case go to full trial.

Diving right into the jury selection process, Matthew describes how typically in a summary jury trial the mediator will select the jury and only dismiss jurors “on the fringe” of either side. When the court noticed the publicity surrounding this Zoom trial, they decided to give each side 15 minutes to do voir dire (on the Friday evening before the Monday trial no less). Michael asks Matthew how a Zoom jury would do things like raise their hands when asked a group question, a process Matthew describes as “The Brady Bunch on steroids.”

The conversation continues with a look at case presentation. Michael asks if Matthew presented his case differently than he would in an in-person trial. Matthew says he tried to go about it like a regular trial as much as possible. He typically uses PowerPoint for his opening, which worked perfectly for the virtual presentation. He utilized Trial Director software to talk the client though evidence and instructed his expert to use PowerPoint to present key documents as well. The expert also used a digital pen to circle key points and blew up pictures as he presented. Michael notes he typically tries to avoid using too much PowerPoint during trial but agrees it would be necessary when presenting virtually.

The importance of building strong group dynamics in a jury has been discussed in the podcast often. Is it possible to create group bonds when everybody is sitting in their own homes? Matthew notes it wasn’t vital for a one-day non-binding trial but agrees this would be difficult for a week-long trial. He describes how the jurors ate lunch by themselves and when the day is over, they just turn off their computers without interacting with the rest of the jury (it would be improper for them to communicate via phone once the day is over).

Whether a strong group or not, the jury did deliberate for 30 minutes and reached a unanimous verdict. Matthew was pleasantly surprised by the fact they found his expert to be credible, even over Zoom. Leading both to agree on the huge cost savings down the line if trial lawyers no longer needed to pay for experts to travel to a trial.

In Matthew’s case, the damages were all economic. Looking at it from a personal injury perspective, Michael worries about jurors’ ability to assess pain in a virtual trial. He gives an example of people who are more moved by a 30-minute TV show than they are by most trials and sees an opportunity for a new group of consultants to emerge from this. An interesting comparison to Saturday Night Live is mentioned that you have to tune in and hear in order to fully appreciate.

Now for the big question: Would Matthew do a Zoom trial if the result was binding? He’s not so sure if he would. While this experience went very smoothly, it was only a one-day experiment. All the jurors were able to find a quiet place without interruptions and they had no technical issues. If this was a full-blown trial it would go on for much longer. He’s also not confident the results could be replicated for such a large endeavor. And has doubts a jury could go through so much evidence and make a decision based off the evidence virtually. Michael and Matthew discuss possible solutions to this but agree this would be a huge concern.

They close off the episode with Michael asking, “Would you do anything differently?” Matthew replies he would present the same way, with an opening, putting on witnesses, and a modified closing. But he would change his use of technology. He urges listeners to have at least two screens set up and to leave the jury on one screen for the entirety of the trial to monitor their reactions. He would also have his paralegal join to help control documents, like he would in a regular trial. Lastly, they both agree while they are very hesitant to hold a binding trial via Zoom, they may be forced to if this goes into 2021.

This podcast also covers jury engagement, body language, whether Zoom trials can provide a representative jury pool due to the technology involved, the importance of trial consultants, how to share lengthy exhibits with jurors, Matthew’s appearance in Sari de la Motte’s Hostage to Hero Facebook group, and more.

If you’d like to reach Matthew to discuss his virtual trial experience or discuss a case with him, visit his law firm’s website at pearsonlegalpc.com or email him at mpearson@pearsonlegalpc.com.

 

Bio

Matthew Pearson is the founder of Pearson Legal PC based out of San Antonio, Texas.  He has over 25 years of experience litigating matters in federal and state courts throughout Texas and the United States.  He has extensive experience in cases involving insurance law, construction defects, business disputes and employment law, and has earned a reputation for successfully representing his clients in the courtroom.  Mr. Pearson was recognized by Verdict Search for receiving the largest insurance verdict in Texas two years in a row. Verdict Search also recognized Mr. Pearson for receiving the fifth largest contract dispute verdict in Texas and the second largest employment verdict in Texas.

Mr. Pearson is Board Certified in Civil Trial Law and Personal Injury Trial Law by the Texas Board of Legal Specialization.  Mr. Pearson also writes articles and frequently speaks on insurance and construction law issues.

 

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