trial lawyer

49 – Malorie Peacock – Applying 2 Seasons of TLN to Your Law Practice

Trial Lawyer Nation is proud to celebrate 2 years of podcast episodes! In this Table Talk episode, Michael Cowen sits down for a conversation with his law partner Malorie Peacock for a discussion about the last two seasons, their favorite takeaways from guests, as well as how this show has helped them create their 2020 resolutions.

The episode begins with Michael asking Malorie what she’s learned from the show and how she has been able to use and apply this to her cases. She responds with “you have to choose the kind of lawyer that you’re going to be” as a theme which has come up several times throughout the show. Whether it’s how you formulate your case strategy, how you run your business, or the kind of lawyer you are going to be, the first step is to go after this goal.

But this isn’t always easy and can be a struggle, which leads to Michael sharing his struggles and how he has overcome them. The “salesman in me wants to close every deal,” Michael reveals when discussing case selection. He explains how hard it can be when “you see the dockets getting smaller you have trouble not freaking out” and shares why it is so important to remain disciplined and stick with your business plan. And while a smaller case docket may be a business model for his firm, Malorie brings the conversation full circle by pointing out how not every business model should be the same.

The conversation shifts to a discussion on which episodes discuss how to turn “a good case into a great case” where Michael shares his thoughts on how Randi McGinn’s book and her skills as a former journalist help her dig deep into the story of a case. Jude Basile is another guest Michael brings up as he shares how inspiring it was to have spoken with him and understand how Jude was able to find value (and an excellent case result!) in a case involving an addict at an addiction facility when other lawyers may have turned the case away.

Malorie points out some of her favorite episodes have been those of Sari de la Motte and Michael Leizerman who help explain why you need to “do the work on yourself as well as in your cases.” When defense counsel does something on a case to cause you to react and become distracted, Michael shares how Leizerman has helped him understand “the zen” of it all and why it’s important not to let the other side upset you and take your energy away from your case. He also brings up the quote “how can they be right and we still win” and how this simple statement from Joe Fried has been so powerful in his cases. Malorie and Michael also agree on and discuss how this mindset can be helpful in a case with degeneration, in both liability and damages.

Entering the confession spirit as the year ends, Malorie asks Michael what his strategies are for enforcing what he says he is going to do. He reveals the lesson he has learned when taking on cases which do not fit his business model. Describing a serious injury case involving a TBI not fitting his “case on wheels” business model, Michael shares the extra time spent looking up case law and standards versus with a trucking case where he immediately understands about 95% of the rules and sources to cite and can do so very quickly. “It’s efficiency,” Malorie adds.

The topic of efficiency transitions nicely to another theme in the show, which is how the brilliant attorneys who have been on the show “create and enforce systems” within their firm so they can do the work they need to do on their cases. If you don’t do this then you’re constantly putting out fires and distracted from the work you should be doing. This also applies to the reality of “you can’t be a lawyer 24/7” and leads to a meaningful discussion on having a work/life balance and how burn out can not only impact your personal life but also your cases and effectiveness in the office.

The podcast ends with Michael and Malorie discussing their 3 resolutions for 2020, which include Michael sharing his book deal with Trial Guides and his goal to continue writing, and Malorie sharing her idea on how she will be using the firm’s in-house graphic designer to work up her cases, which Michael describes as “brilliant” and “will scare the crap” out of defense attorneys.

An exciting piece of news shared on this episode is Michael’s commitment to hosting a Facebook Live session every month in the “Trial Lawyer Nation – Insider’s Circle” private group . If you haven’t already requested to join this group, we suggest you do so now in order to participate in the first Facebook Live in January 2020. The exact date will be shared on our podcast social media pages and also via email for those who are subscribed to our emails.

Thank you to everyone who has supported our show for the past 2 years. We look forward to sharing even more great shows with all of you in 2020 as we enter Season 3!

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

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

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

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

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

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

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

These Table Talk podcasts also could not happen without the interaction and questions that are submitted by our listeners, for which we are eternally grateful for and encourage you to continue to send us your thoughts, ideas, and questions as we love sharing our experiences with them.