strategy

96 – Malorie Peacock – Building Your Profitable Law Firm

In this episode of the Trial Lawyer Nation podcast, Michael sits down with one of his favorite guests, his law partner Malorie Peacock, for an episode about the decisions they’ve made over the years to build and run a profitable law firm. 

“It’s a podcast about actually making money from practicing law.” – Michael Cowen

Michael and Malorie begin the episode with a look at where they started in 2014. Back then, the practice was general personal injury with a lot of small car wreck cases. That year was the first time they decided to stop taking non-commercial cases without a large insurance policy – a scary decision at first but has since proven to be very successful in branding Michael as a “big case lawyer” with referral partners. And because of this scary decision, Michael began meticulously tracking specific numbers to make sure the new strategy was working.  

Michael shares the main numbers he tracks and analyzes with his leadership team annually – the average case fee and the median case fee. He then breaks it down further by case type, referral source, lawyer assigned to, and more.  

Tracking each of these has shown that even though the firm is only accepting 1/3 of the cases they did before, the firm has grown significantly since 2014. This has helped fuel decisions from what kinds of cases they accept, to marketing, and when to hire more staff. 

“I didn’t dare to dream that we’d end up with the median or average fees we’re at now.” – Michael Cowen

Michael then reminds listeners that he’s been doing this for 20 years and being this picky about what cases he accepts is NOT something he could have done successfully when he first started. 

“If it doesn’t work, you can make other decisions. You don’t have to die on this hill.” – Malorie Peacock

He and Malorie then dive further into their “counterintuitive” approach to growth – to accept LESS cases but make MORE money – and the big and small decisions that were made to get them where they are today.  

The first big decision was that they would not accept any car crash case that did not involve a commercial vehicle or 18-wheeler, unless there was a “large” insurance policy, adding that the definition of “large” has been re-evaluated and changed many times since the decision was first made.  

Malorie then digs deeper into why re-evaluating your rules for case acceptance every year is so vital. Michael explains that you need to see if it’s working, and if it is working, decide if you should lean further in that direction or not.  

Another decision made was if it “doesn’t have wheels” and isn’t worth at least $1 million, they usually won’t take it. Michael shares why this one has been hard to stick to, but he and Malorie discuss why they need to be this picky, citing the lack of systems in place for these cases as well as the amount of research and work that needs to be put in to get the maximum value for the case.  

Malorie and Michael continue discussing some of the changes they’ve made, and some changes they decided not to make, and how they evaluate each item up for discussion. For example, they frequently discuss eliminating cases with low property damage, but for now have settled that they’ll take a low property damage case if it meets other criteria. This insightful and holistic approach is a must-hear for any listener who is looking to re-evaluate their approach to case acceptance. 

“You can’t fight a war on 3 fronts…If you have to fight on all 3 of those issues, it’s really tough to get a jury to go along with you on all 3 and still give you a lot of money.” – Michael Cowen

This leads Michael and Malorie to discuss the sunk cost fallacy once again, where you hesitate to pull out of a case once you’ve put money into it. Michael shares how he used to spend most of his time working on cases that didn’t make him any money, and how learning to let those cases go and withdraw when necessary has made him a much happier person and has actually caused his firm to make MORE money in the long run. These include cases where the client lied to you, or even cases where the facts just aren’t what you’d hoped they would be. 

Michael then shares a heartfelt story about his uncle, and how his death made Michael realize the importance of enjoying your life while you’re still here. Malorie adds that at the end of the day, a personal injury law firm is not a non-profit, and if you’re not making money, then you’re not doing it right.  

“We get one ride on this earth, and I want to choose to be happy and enjoy my time.” – Michael Cowen

They continue to discuss some of the smaller decisions made along the way, including the implementation of in-depth systems. Not only does this help the case resolve faster, but it also helps the lawyer focus less on meeting deadlines and more on in-depth research and complex legal work that can really maximize the value of the case. 

“Cases are not wine. They do not age well.” – Michael Cowen

Michael and Malorie begin to wrap up the episode with a look at docket size, which has lowered dramatically at their firm in the last 7 years. This has allowed them the time to implement those in-depth systems and end up getting 150-200% of the money they received 7 years ago on the same wreck with the same injuries.  

If you don’t have control over your docket, but you do have control over what you work on, Malorie recommends utilizing the 5-star case system. This system ranks your cases based on your projected fee and your win probability, and the goal should be to spend as much time as possible on the 5-star cases and as little time as possible on the 1-star cases.  

“Limiting docket size at the firm… counterintuitively… has made everybody happier, but also has made everybody more money.” – Malorie Peacock

The pair concludes the episode by emphasizing that the criteria and decisions discussed in this episode need to be discussed at least once every year, which they will be doing the week this podcast airs, and that the decisions you make need to work for your firm and your life.  

This podcast episode also covers saying “no” to cases, the Pareto principle, why Michael still accepts other personal injury cases, getting out of cases with “toxic” clients, the logic behind “from crash to cash in 12 months”, why you need to be ready for trial the first time you’re called, and so much more. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

85 – Chad Dudley – Let Go To Grow

In this episode of the Trial Lawyer Nation podcast, Michael sits down with accomplished attorney and consultant Chad Dudley. Chad is a founding partner of Dudley Debosier, part-owner of CJ Advertising, and co-founder of Vista Consulting. He and Michael will discuss time management, developing and maintaining systems, coaching your attorneys, valuing your cases, and the #1 legal marketing strategy (Hint: It’s not what you think!).

Michael and Chad kick off the episode by discussing the question already on everybody’s mind: how does Chad find the time to own a 50+ attorney law firm and a 60-employee marketing agency? He explains how the two complement each other well, and the key has been to “Let go to grow.” When he started these businesses, he wore a lot of hats because he had to. Yet, as the businesses grew, he had to let go of the smaller tasks that could be handled by others; and to ensure those tasks are completed consistently, he’s developed systems for everything from depositions to file structure. This allows him to spend more time on things he enjoys doing, and more importantly, focusing on the things he needs to be the one to do.

Michael then asks Chad how to set those systems up. Chad explains how the first step in this process is based off the book “The First 90 Days”. You need to determine if the current status of your firm is startup, turnaround, accelerated growth, realignment, or sustaining success. You then start with a broad framework for a system, then work your way down to the details. It’s a very methodical process, but so worth it in the end.

Michael then shares a frustrating experience he had with a past consultant who was trying to prescribe him a system that was meant for a pre-litigation firm, when Michael’s firm was 90% litigation. Chad agrees that pre-packaged systems almost never work for law firms because of the diversity of practices and adds that the owner must determine what type of practice they want before building out any systems.

There’s a common attitude in the Plaintiffs bar that if you build out too many systems, you’re treating your firm like a McDonalds, and each client needs to be treated like an individual. Michael addresses this and adds that the more systems you have in the place, the more you can care for your clients and spend time on things like going to their house to get to know them on a deeper level. Chad agrees, citing the book “Discipline Equals Freedom,” and adds that systems allow you to focus on the relationship, be a better attorney, and deliver a better result to your client.

After an insightful look at why the boss needs to follow systems before his or her employees ever will, Michael and Chad discuss the challenges of transferring their vast knowledge to their employees. Chad shares that when you’re naturally good at something, it’s as natural as breathing; and you’ll likely skip some vital steps when teaching because of that. He encourages attorneys to have someone observe them doing the task, take detailed notes, and help you coach the other attorneys along the way.

Michael then brings up his personal struggle with sticking to the systems that he implements and asks Chad how he avoids doing that. He explains how he has a checklist that he follows for each new system, makes sure he explains why they’re doing it, sets out clear expectations, and designates somebody to hold people accountable. He monitors each system differently, depending on what it requires. When possible, he tries to monitor systems using dashboards and reports.

Chad continues by sharing an ingenious system to prioritize different projects and initiatives at your firm, using a point-based system that will resonate particularly well with the data-driven lawyers listening.

The conversation shifts to a look at Chad’s practice, Dudley DeBosier. With a firm as large as his, how does he keep the value high on his cases? Chad clarifies that they try to be what he calls a “hybrid” firm, which contrasts against low value/high volume and high value/low volume firms. To do this, it’s crucial to identify and rank your attorneys from best to worst, and a good way to identify great cases when they come in. Done give a “tier 1” attorney a very complicated case- it’s not fair to that attorney or the client.

Chad and Michael both hold regular meetings to assign cases a valuation in a group setting. This serves to motivate all the attorneys and bring out their competitive sides and to identify great cases (or bad cases) earlier on in the process. With the bad cases, it helps attorneys avoid spending too much time on them. Citing Vilfredo Pareto, Chad explains how 20% of your effort creates 80% of your results, which translates perfectly to personal injury cases. In fact, he’s found that many times 5% will generate 50% of your revenue and 20% will generate 80% of your revenue. The bottom 40% of your cases will only generate 1-2% of your revenue, meaning the time spent on them is a massive hit to your labor ratio.

The pair closes the conversation with a look at what marketing strategies are working right now. Chad gives a lengthy list of strategies but insists that the most important strategy is performing well for your clients. Strategies like TV ads will bring people to the “restaurant,” but if the food is bad, it’s not going to work. He and Michael agree that the best way to bring in cases is to do a good job working up the ones you have.

If you’d like to contact Chad Dudley regarding a case, marketing, or anything else, you can email him at cdudley@dudleydebosier.com.

This podcast episode also covers why high volume/low-value firms are dying out, why lazy law firm owners tend to have lazy attorneys working for them, finding a person at your firm to hold others accountable, why Michael likes to schedule depos right after the defendant answers, and a plethora of book suggestions! Visit our references page for the complete list of visit Chad Dudley’s bookshelf.

Guest Bio

Chad Dudley started Dudley DeBosier Injury Lawyers with his partner, Steven DeBosier and James Peltier in 2009. The firm now has over 50 attorneys with offices throughout Louisiana.  Chad also founded Vista Consulting with Tim McKey in 2009. Vista Consulting works with personal injury firms all across the country on all aspects of running a law firm.  Additionally, Chad is the CEO of cj Advertising, an advertising company that represents personal injury firms throughout the country. He is a nationally recognized speaker on the topics of law firm management, marketing and technology.

Chad can be reached at cdudley@dudleydebosier.com

 

64 – Mark Mandell – The Case Framing Mindset

In this Trial Lawyer Nation podcast, Michael is joined by legendary trial lawyer and author Mark Mandell. Mark wrote the must-read books “Case Framing” and “Advanced Case Framing.” Michael and Mark take a detailed look inside these books, including what case framing is, how to apply case framing, what “I just can’t get over” issues are, using “echoes” in trial, Mark’s trial closing strategy, and the story of the hardest case Mark ever tried.

Michael begins the episode by asking Mark to describe what case framing is. Mark starts at the beginning and explains how when he first started practicing, plaintiff lawyers were basically in “the dark ages.” Mark began looking for new ways to try cases almost immediately, but found each method he tried had holes in it. Then about 15 years ago, he started to study decision science and put together the basis of case framing.

Mark insists case framing is not just a method. As another great lawyer stated and Mark has since adopted, “It’s more than a model. It’s a mindset.” Mark explains how case framing has become a part of him, and influences everything he does both pre-trial and in trial. When he was first asked to describe case framing in one sentence, Mark struggled initially but then settled on, “Every single thing you present at trial needs to be framed and sequenced in a way that focuses the attention of the jurors on the points YOU most want to make.” He goes on to describe how a case is decided by what it’s focused on, so why would you want to focus on anything else? As Mark astutely summarizes, “A case frame is the heart and soul of the case. It gives the case meaning.”

Mark continues with explaining how a case frame needs to have two qualities. It needs to relate to the facts of the case, and it needs to have universal application in our society. He shares the detailed example of how he first came to understand this from the OJ Simpson criminal trial. Mark lists off the issues of the case and explains how they aren’t case frames. After exhausting these, Mark explains how the case frame was actually wrongful accusation and elaborates on why that is such a powerful case frame to use because of both its power and universal applicability.

Michael then asks Mark to explain the next level of case framing, which Mark named “I just can’t get over” issues. Simply put, it’s an issue that if a jury can’t get over, it’s going to guide their verdict. These issues can come from an almost endless amount of places, but they need to embody that statement.

As a follow up Michael asks what every listener must be thinking, what are some examples of defense “I can’t get over” issues and what can plaintiff lawyers do to overcome them? Mark gives a laundry list of examples and directs listeners to his book “Advanced Case Framing” where he details 16 different ways to overcome them. He briefly explains how to overcome these issues by refuting them or by “substituting them” or “overcoming them” with more powerful issues.

Another aspect of case framing Mark discusses in his books is “echoes.” Marks insists this is actually one of the hardest concepts to understand. An echo needs to either support or defend an issue, or Mark says you shouldn’t use it. It can be a document, idea, exhibit, or many other things that cause a good issue to reverberate throughout the jury’s head throughout trial. Mark explains how people need echoes to fully understand something because nobody can pay attention indefinitely. He then provides several examples of echoes he used when trying a DRAM shop case which he says is the hardest case he’s ever tried. Through this example, he highlights the importance of ignoring chronology and starting the case at the #1 “good for you” issue in the case.

The conversation shifts to a discussion of Mark’s different closing strategies. The first of those is that he never discloses his overall case frame until closing. He has numerous reasons for doing this, including that you need to leave something new to tell the jury in closing – and since the jury always goes into closing arguments undecided on something, what could be better to present to them than your overall case frame? His other reasons include rebuttal rules and that your case frame can change during trial, based on how it unfolds.

Mark is also known for using questions in his closing arguments, which Michael asks Mark to explain. Mark offers a surprisingly simple answer – people don’t like being told what to do. Mark continues by explaining that when you tell the jury what to do, YOU become the issue. When jurors come up with the answer themselves, “They own that answer now.”  He believes this causes them to go into deliberation much stronger. Michael adds that trusting the jury is both the most liberating and terrifying thing, to which Mark agrees. But, it makes trial a lot more fun AND leads to better results.

Michael and Mark conclude the episode by taking a detailed look at the DRAM shop case which Mark insists is the most difficult case he’s ever tried. Mark walks listeners through the shocking details of the case and explains how he applied his methods throughout. After being told by countless lawyers to drop the case, Mark walked away with a $21.5 million verdict after interest. This story truly needs to be heard to be appreciated.

This podcast also covers Mark’s advice on one of Michael’s more challenging cases, using anchors in trial, secondary case frames, beginning every witness examination with an “I can’t get over” issue, and so much more.

If you’d like to learn more from Mark Mandell, visit his website and purchase his books “Case Framing” and “Advanced Case Framing” here.

 

Guest Bio:

Mark Mandell practices law at Mandell, Boisclair & Mandell, Ltd. in Providence, Rhode Island. He specializes in catastrophic personal injury, wrongful death, medical negligence, dram shop and products liability cases.  He is triple Board Certified, nationally.  His certifications are in the areas of Civil Trials, Civil Pretrial and Medical Negligence Litigation.  Mr. Mandell is currently listed in “The Best Lawyers in America.” He is a member of the Inner Circle of Advocates.  Mr. Mandell is a past president of American Association for Justice, Rhode Island Trial Lawyers Association, and The Rhode Island Bar Association.  He is the immediate past chair of the Board of Directors of the Roger Williams University School of Law. He has more million dollar verdicts and verdicts of over $10,000,000 than any other lawyer in Rhode Island history.  Mark has written two books “Case Framing” and “Advanced Case Framing”.  He has also published 24 articles in national and state trial law journals on a variety of subjects and has lectured in 48 states.

 

63 – Sonia Rodriguez – “You Got Me”: Discrediting Defense Paid Opinion Witnesses

In this Trial Lawyer Nation podcast, Michael sits down with his law partner Sonia Rodriguez for an overview of deconstructing defense-paid opinion witnesses. They highlight many of their favorite strategies to use when dealing with a witness who won’t answer your questions, their favorite unexpected “gifts” from witnesses, and the importance of why someone becomes a defense-paid opinion witness in the first place. This episode is full of shocking real-life examples you don’t want to miss.

Michael begins the episode by highlighting the defense strategy to hire someone to discredit their client. He asks Sonia, “What do you do to deal with this?” Sonia describes the first action she takes, which is reviewing what organizations they show they are affiliated with on their CV (curriculum vitae). Most professional organizations have ethical guidelines which these witnesses must abide by. She’s found success in displaying these guidelines to the witness during the deposition and using them to prevent the witness from stating biased information.

Michael then describes the common narrative these witnesses all portray which every plaintiff attorney listening is sure to relate to. Any injury from the crash goes away in 6-12 weeks, but any injury from 10 years ago is most certainly the cause of everything today, even if they haven’t been to a doctor for it in 9 years. Sonia has combatted this in medical witnesses by focusing heavily on the client’s description of pain. Most doctors will admit that the patient’s description of pain is a very important part of the diagnosis. She uses this information to put the witness in a position of saying, “the records aren’t adequate,” which does not play well with the jury.

The conversation then shifts to the difficult but highly effective strategy of turning the defense paid opinion witness into your witness. Sonia explains why this is so difficult to do successfully, but has maneuvered these difficulties by focusing her depos on what she knows she can get from them. She shares an example of this where she was able to build up the witness’s credibility, then use it to get some simple, clear concessions.

On the other hand, Michael says his primary goal in every defense paid opinion witness depo is to make them his witness. Instead of fighting with them in an area where he does not have credibility, he spends his time researching the witness, reading prior depositions, and trying to find what they will give you based off those prior experiences.

Michael elaborates further on the importance of reading past testimonies by sharing a shocking example with a biomechanical engineer who claimed his client could not possibly have a herniated disc from the crash. Before trial, Michael read several of his previous depositions and went through all of the literature the witness cited in the case. He then shares an example of how he used those prior depos to discredit the witness, how his voir dire helped him do this while also relating to the jury, and why reading the literature can help your case.

Sonia wholeheartedly agrees and gives her real world experience using the literature to your advantage. She shares an example where a neurosurgeon used a study about the prevalence of herniated discs to claim her client’s pain wasn’t caused by the crash. After reading the article, Sonia found that it only referred to a specific type of herniated disc, which was not the type her client had. After revealing this, all the witness could say was, “You got me.”

Another all too familiar roadblock is the witness who just won’t answer your questions. While Sonia and Michael both agree this will always be a barrier, they both share insightful techniques on how you can overcome this. Sonia does this by always recording the testimony, so she can show the jury the witness was refusing to cooperate or concede to basic things. Michael then offers another strategy he employs with uncooperative witnesses – using basic, fair questions in a true or false format. While you may still need to ask the same question 10 times to get a response, you can always cut out the first 9 asks. The key to this is to never appear mad or frustrated because it doesn’t present well to the jury. Sonia agrees with this strategy and points out how well-suited it is for a Zoom deposition.

On a lighter note, Michael and Sonia share their favorite unexpected “gifts” they’ve received from paid opinion witnesses. Sonia details her experience of utilizing past testimony to prove an orthopedic surgeon was simply touting lies for money and highlights the importance of sharing information with other members of the plaintiff’s bar. Michael’s favorite “gift” was an ex-sheriff providing testimony on a drunk driving case, who made an incredibly racist statement in his deposition. The judge insisted the case not be made about race, which Michael had no issuing agreeing to. But when Michael asked the sheriff the same question at trial (assuming the witness had been prepped not to make the same mistake), he made the SAME racist statement he made in the deposition.

While these unexpected “gifts” are a huge blessing, they’re hard to come by on most cases. Sonia and Michael conclude the conversation by exploring why people become paid opinion witnesses in the first place. He accurately states, “This isn’t why people want to become doctors or engineers.” Michael explains how many of them either just weren’t good at their jobs or experienced an injury that rendered them unable to perform surgery.

This podcast also covers using before and after witnesses, focusing on the symptoms instead of the diagnosis, whether or not to “go in for the kill” in a deposition, verifying the qualifications of a witness, and so much more.

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