trial story

84 – John Sloan – Experienced Listening

In this episode of the Trial Lawyer Nation podcast, Michael sits down with renowned trial lawyer John Sloan. They dig into the vast experience John has acquired in his 40-year career as a trial lawyer, focusing on how he got where he is today, using role reversal techniques to better understand both clients and defendants, and his jury verdict on what he calls his “favorite case ever.”

Michael and John start the episode with a look at where John started and how he became successful. He shares how his boss right out of law school told him to figure everything out for himself, something that was tough at the time (especially when he announced ready for a murder trial just 5 weeks after being sworn in!) but instilled in him a work ethic which has served him well. He continued to learn all he could from other prominent lawyers in town and work countless weekends until he built his skillset up enough to focus on personal injury cases. When it comes down to it, John insists there is no substitute to putting in the hard work of learning both your case and trial skills.

The pair continues this note with some advice for young lawyers who want to get in the courtroom. While John concedes that it’s harder to try cases than when he started, he insists the opportunities are out there if you’re willing to work for them. Michael agrees and adds that young lawyers need to be willing to “pay their dues” by trying some not-so-great cases before getting to try awesome cases. He and John then discuss how they cope with losing at trial, and even highlight a shocking benefit of taking cases to trial even if you lose them.

Michael then moves on to ask John about how he uses role reversal techniques to get to know his clients on a deeper level. It comes down to really taking the time to get to know your client, instead of just asking them questions to elicit facts about the case. It not only makes the attorney-client relationship more meaningful, but it also helps the lawyer be a better advocate for the client. John then elaborates why you don’t need to do a full-day psychodrama to use these techniques. You need to learn the skills first, but you and your staff can use role reversal techniques with your clients in everyday conversations.

Among those techniques is something John calls “listening with a 3rd ear,” which he describes as listening for the story beneath the words being spoken. It’s the emotional content of what you’re hearing from the client, whether it’s actually stated or not. Michael shares when he does this, he makes a point to check in with the client and confirm it’s actually representative of how they’re feeling. John agrees and adds some more interesting strategies for building this connection with your clients.

Michael then shifts gears to the defendant- can you use these role reversal techniques with the people on the other side of the case? John says, “Absolutely.” He explains how he likes to do this introspectively before a deposition. What would they say to their lawyer that they would never say to you? Then, frame the questions you ask around that. Michael tries to approach the defendant (especially the defendant driver) from a place of understanding, which allows the jury to get mad at the defendant company in their own time.

After a brief but insightful conversation about the importance of treating each of your cases as individuals, John and Michael discuss the power of saying no to cases which don’t suit you. John reflects on when he first started his own firm and would take any case just to bring some money in. To this day, that mentality has made saying no to a good case tough for him. But he and Michael agree there comes a point in your career where you need to prioritize your time.

If you’ve listened to Trial Lawyer Nation, you know Michael loves a good trial story; and John’s jury verdict in Tampa, Florida couldn’t be left undiscussed. Between being able to try the case with his nephew, the low-ball offer the defense made right before trial, and the client being one of the most genuine and hard-working people John had ever met, this trial story will resonate with every trial lawyer listening.  John says it was one of those trials where “everything just went right,” and the result is an inspiring way to end the episode.

If you’d like to learn more from John Sloan or contact him about a case, visit his website or give him a call at (800) 730-0099.

This podcast episode also covers why sharing information benefits everybody, the importance of training your staff to use role reversal techniques with clients, how to frame the defendant driver as a victim of the company, disciplining yourself to say no to cases, and so much more.

 

Guest Bio:

As a boy growing up in Henderson, John Sloan thought he might become a preacher some day. However, by the time he began his undergraduate studies at Baylor University, John made up his mind: He was going to be a trial lawyer.

John received his Bachelor of Business Administration degree from Baylor in 1977 and enrolled at Baylor Law School, where he began to hone his trial skills in the school’s renowned Practice Court.

He earned his J.D. in 1980 and returned to East Texas, joining a firm in Henderson.  John immediately began trying cases, including a murder trial just five weeks after he received his law license.

Two-and-a-half years after he started work at the law firm, John decided that he wanted to focus on personal injury cases. He moved to Longview and opened his own practice. He has been trying cases in East Texas and courts across the country ever since.

At the time he established Sloan Law Firm, John says, he wanted to create a law firm that would provide exceptional personal service to its clients.

“I wanted us to not be a mill where people are just numbers and don’t have a lot of contact with the lawyers,” he says. “I wanted to be able to know my clients personally.”

In addition to offering clients a personal touch, John also provides zealous advocacy. He has achieved several significant verdicts and settlements for his clients. His cases generally involve truck and auto accidents, defective products, and oilfield accidents. He also focuses on brain injury cases.

While courtroom victories are satisfying, John finds that his practice provides many other rewards.

“I like the people I get to work with—the clients—and I like the people here in the office. I like the variety. I like the competition, the battle, the mental gymnastics, being able to outwit and outwork my opponents,” John says.

John’s commitment to the trial lawyer profession has extended to the prestigious Trial Lawyers College. John attended the College in 1998 and joined the teaching staff in 2002. He was named to the Board of Directors in 2010 and as President in 2014.

John also engages in community service. For several years, he served on the Board of Directors of Habitat for Humanity. He has also worked with Justice for Children, which provides pro bono legal advocacy for criminally abused children. He has coached kids in just about every sport.

In his personal time, John enjoys being active and has participated in numerous triathlons. His primary interest is his small farm outside Longview, where he grows trees and unwinds from his busy law practice.  He is married to the former Dee Anne Allen from Tyler, Texas, and they have two children, Trey Sloan and Veronika Sloan.

 

78 – Randy Sorrels – Masked Justice: Part 4

In this episode of the Trial Lawyer Nation podcast, Michael sits down with former President of the State Bar of Texas, Randy Sorrels for another installation of our Masked Justice series. Randy recently tried an interesting case where he represented the sons of two former professional baseball stars and received a $3.25 million verdict. They’ll cover that recent victory, how this trial was different from a pre-COVID trial, what it’s like representing famous clients in high profile cases, Randy’s service to his clients, and more.

They start off the episode by digging into Randy’s background. As a defense lawyer at a large firm early in his career, he was able to gain experience trying cases quickly after law school. That experience has proved invaluable since transitioning to exclusively plaintiff’s work, and he notes some interesting differences between how a plaintiff’s lawyer and a defense lawyer try a case. He then sums this up by stating, “Trials always happen because one side mis-evaluates the case. I’ve been on both sides of that.”

Michael then transitions the conversation to Randy’s recent trial verdict, and Randy starts by sharing the facts of the case. His clients were two minor league baseball players, who just happened to be the sons of former professional baseball players (and close friends) Roger Clemens and Mike Capel. The two young men were at a high-end bar/night club on New Year’s Eve of 2018 when they were brutally attacked by a bouncer and, Randy claims, the owner of the venue. After a “scuffle” which neither of the men were involved in broke out, they were both violently thrown out of the bar, causing Kacy Clemens injury to his throwing elbow and Conner Capel a fracture to the skull. But more importantly, they both suffered tarnished reputations for “being in a bar fight,” something the MLB does not take lightly.

Randy was hired on the case almost immediately, leading Michael to ask what he did to preserve evidence. He shares how the police attempted to preserve the security footage from the incident, but after a suspicious interaction with the owner, they were informed the cameras only live stream and do not record. Luckily, video of the incident had been captured on cell phones from patrons. This footage was the evidence needed to prove neither of the men were involved in the fight.

Michael then digs deeper into the mechanics of Randy’s COVID-era trial, which was held in person in Harris County, Texas. Randy explains how they selected the jury in a large convention center and how the judge did an excellent job with maintaining a safe environment for everybody. The courthouse setup placed the jurors where the audience usually sits and placed the witnesses in the jury box. If you stood up, you had to wear a mask- something Randy avoided doing for the first couple days of trial, but once he stood up with the mask on, he noticed jurors were paying better attention than when he was seated and mask-less.

Randy then discusses why he does not believe there was a negative effect on the jurors with Covid safety protocols, and though he was initially concerned the jury pool would lean conservative, it ended up being a very diverse and representative jury. And while this trial was far from “normal,” Randy is very satisfied with the $3.25 million verdict he received for his clients and was highly impressed with Harris County’s system for in-person trials during the pandemic.

Aside from the unusual circumstances surrounding the trial brought on by the pandemic, Michael is curious as to how you convince a jury to award a professional athlete’s son a 7-figure verdict. Randy explains how it was a challenge, especially because both clients were working within 10 days of the incident, but in the end it worked out. In fact, Roger Clemens’ testimony was especially powerful to the case. Randy shares an amazing story of what happened when the defense attorney tried to grill Roger about allegations of steroid use, but ended up saying, “I’m a huge fan, and you’re a hell of a baseball player.”

This wasn’t Randy’s first rodeo representing a famous client. Early in his career, he also represented Ozzy Osbourne after he was rear-ended in a taxi in Houston (something that left Michael star struck)! While his whiplash injury was seemingly minor, Randy explains how it turned into a fairly large case because Ozzy had to cancel 3 shows for the most rockstar reason you’ve EVER heard. This story is a must-listen for metal fans and legal enthusiasts alike!

Randy also explains how important service is to him through his time as the State Bar of Texas President, a mostly unpaid position which he served in for a year. He believes interacting with lawyers on both sides has made him an even better trial lawyer today, and helped give him the state-wide notoriety to start his own firm, Sorrels Law. Michael also points out how Randy will share when he gets the policy limits on a case with a $30,000 policy limit. But Randy explains why those cases are still important and deserve representation, something he’s happy to give them.

The pair end the episode with another unbelievable story from Randy’s most recent trial, involving a lovable defense witness with a hidden secret. This really is one you need to hear to believe!

This podcast episode also covers why Randy was hired so quickly on the Clemens case, a creative place to search for footage of a crash, the safety precautions taken by the court, whether or not you should conduct jury research before a trial, why big verdicts are good for all plaintiff’s lawyers (even if it’s not your own), and so much more.

If you’d like to speak with Randy Sorrels you can email him at randy@sorrelslaw.com or call his cell phone at (713) 582-8005.

 

Guest Bio:

Randy Sorrels is the Immediate Past President of the State Bar of Texas, which consists of almost 105,000 lawyers. Texas lawyers voted him to this position by the widest margin of victory in State Bar election history. As a Texas lawyer, Randy has also been named one of the top 100 lawyers in Texas for the last 14 years by Texas Super Lawyers magazine.

Randy holds five board certifications from the Texas Board of Legal Specialization and the National Board of Trial Advocacy. He has extensive experience handling personal injury cases, medical malpractice cases, and business disputes – including “bet the company” cases.

Most recently, Randy has been named the Best Lawyers® Medical Malpractice Law – Plaintiffs “Lawyer of the Year”, in Houston, and this is his third time for him to receive this honor. He has also been awarded some of the highest legal honors in Texas. He has been awarded the State Bar of Texas’ President’s Award (recognizing the one Texas Lawyer who provided the most outstanding contributions through distinguished service to the lawyers of Texas), the Judge Sam Williams Award (recognizing the Texas lawyer who provides the greatest contribution to both local bars and the State Bar of Texas), and the Houston Bar Association President’s Award (recognizing significant contributions to an HBA program). Early in his career, Randy was honored with the Woodrow B. Seals Outstanding Young Lawyer of Houston Award (recognizing the one young Houston lawyer who exemplified significant professional traits both inside and outside the practice of law).

 

77 – Gregory Cusimano – Understanding & Utilizing The Jury Bias Model

In this episode of the Trial Lawyer Nation podcast, Michael sits down with trial lawyer and consultant Gregory Cusimano. As one of the authors of “Winning Case Preparation: Understanding Jury Bias, Gregory has conducted a plethora of research on why plaintiff’s lawyers win and lose cases. He and Michael discuss his 10 part jury bias model in detail and how you can apply it to your own cases. 

They start off the episode with Michael asking Gregory how he first got involved with this research. He explains how it began as an AAJ committee which he co-chaired with attorney David Winters. The committee was instated because there had been a trend of good lawyers losing good cases, and they wanted to understand why it was happening. After conducting around 1,000 focus groups on every case type imaginable, they developed the foundations of the jury bias model. 

Gregory goes on to share how it didn’t take long to identify the five common anti-plaintiff biases, which they called “untried issues.” These are issues which are important to a jury, but not to the plaintiff’s lawyer, so most lawyers would try the case without ever addressing them. The initial 5 untried issues included personal responsibility, suspicion, victimization, “stuff” happens, and “blame the plaintiff.” While some of these may seem obvious, Gregory explains why understanding these issues is critical for your case 

Michael then asks Gregory what plaintiff’s lawyers can do about these issues, which he admits was the much harder answer to find. In time, he was able to come up with the “10 Commandments,” or 10 decision-making events or aspects that tend to work. He emphasizes that these are in no way a fool-proof formula to win every case, but instead are a way to use social science to present your case in the best way possible.  

The first (and incredibly important) step is to develop the trial storyThe story should be discovered through jury research. Then, you frame your trial story to be consistent with the beliefs of the potential jurors in your venue. Gregory then eloquently ties in the concepts of Fundamental Attribution Error and Availability principle to explain how important framing and ordering of the facts is to the success of your case.  

The next step is to elicit confirmation. Once you’ve found through research what the jurors in your venue believe, you need to present the case in a way which is “hand in glove” to what they already believe. When Michael asks Gregory how the lawyer should figure this out, his answer is fitting with the research he’s done: concept focus groups. If the case warrants it, this is the gold standard in Gregory’s opinion. If it’s a smaller case or you don’t have the funds to hire an outside consultant to hold the focus group, Gregory STRONGLY cautions against attempting to do it yourself. Instead, you should ask colleagues, friends, or family to participate in the process. This is because lawyers are already so invested in their own cases it’s nearly impossible to not project your own biases to your mock jury. Lastly, it’s important to remember that a focus group is qualitative, not quantitative research. A group of 10 is not a big enough sample size to conclude why you need a specific type of person on your jury. 

Another “commandment” is to “head the norm.” Gregory explains how this stems from the “norm principal,” and when applied to trial it means if the conduct of the defendant is “according to the norm,” juries are not likely to find liability. He shares an example of a case he had where a man was on the back of a garbage truck that crashed into another vehicle, amputating the man’s leg. He thought the case was perfect, but he kept losing in every focus group and mock trial. Eventually, he realized even though men standing on the back of a garbage truck is incredibly dangerous, every juror had seen people doing it. It was the norm, so they never found liability.  

They move on to discuss another commandment, “plan for hindsight bias.” This is framing your case in a way where a jury would think, “I knew that was going to happen.” For example, a product liability case begins in a corporate boardroom six years ago when they decided not to go with a safer option. As you share the subsequent meetings and decisions made, the jury already knows how the story is going to go when your client swerves to avoid a puppy in the road.  

The next commandment is to create empathy. ReferencingThinking Fast, Thinking Slowby Danny Kahneman, he explains how there are two distinct ways in which people make decisions – intuitive or logical and reasonable. It may seem backwards, but if you can get the jury to project empathy, they will begin to use more logic and analyze. Gregory then emphasizes empathy is NOT sympathy, and shares why it is such an important distinction. 

They move on to briefly discuss Michael’s favorite commandment, “drop the anchor” before the 10th and final commandment, “build the frame.” Citing Mark Mandell, Gregory elaborates that framing can be both overall and very minor. He and Michael both share examples they’ve used in cases which appear minor, but made a huge difference in the jury’s perception of a statement. 

They conclude the episode by discussing the third and final section of Gregory’s book, the new method for putting a case together. He describes how he uses the 10 commandments in such a clear and concise way anyone who puts in the work can do it. In fact, this strategy has been so successful that Gregory and his team have found it will move a good case 15-20% into the plaintiff lawyer’s favor! This incredibly informative episode is truly a must-listen for any plaintiff lawyer who wants a leg up with the jury!  

If you’d like to contact Gregory to learn more from him or to consult on a case, you can email him at greg@winningworks.com or call his office at 256-543-0400.  

 

Guest Bio:  

Gregory S. Cusimano is an owner of the law firm of Cusimano, Roberts, Mills & Knowlton, LLC in Gadsden, Al. and Winning Works LLC a national trial consulting firm. He concentrates his practice on serious personal injury and death cases.   He is a frequent speaker at continuing legal education programs throughout the country. Mr. Cusimano was twice elected to serve on AAJ’s Executive Committee and budget Committee, was chair of the ATLA Blue Ribbon Committee to study juror bias and continues to conduct research on tort reform rhetoric and juror attitudes.  He, along with David A. Wenner, developed the Jury Bias Model™ that many say revolutionized how cases are tried today. 

Cusimano has held every elected office in the Alabama Trial Lawyers Association, including president. The Association has honored him with an annual Cusimano Symposium.  He was appointed by the Alabama Supreme Court to committees to rewrite Alabama Rules of Evidence, the Alabama Pattern Jury Instructions, and to revise the Alabama Rules of Civil Procedure. On two occasions, Mr. Cusimano was asked to be the plenary speaker at his State Bar Association’s annual meeting. He served on the President’s Council of the ATLA, (American Association for Justice – AAJ), and was the first to be made a Lifetime Member of the Board of Governors, 

Mr. Cusimano has published numerous articles in state and national magazines and contributed to articles in various treatises.  He is contributing editor of the two volume Alabama Tort Law book, through the fourth edition and co-edited the six-volume set Litigating Tort Cases. He is one of the authors to Winning Case Preparation  published by Trial Guides. He is listed in Best Lawyers of America and is a Life Member in the National Registry of Who’s Who in American Law. Cusimano was the second inductee into the Hall of Fame of the Small Office Practice Section of AAJ.  He is a Diplomate of the International Academy of Litigators and The American Board of Trial Advocates. The designation of Diplomat and Champion of Trial Advocacy was bestowed on him by AAJ’s National College of Advocacy.  He was inducted as a Fellow of the American Bar Foundation, and the Alabama Law Foundation.  Cusimano served as Chairperson of the National College of Advocacy.  He was given the prestigious Lifetime Achievement Award by the Association of Trial Lawyers of America and the Leonard Ring Champion of Justice Award by AAJ. 

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.

 

31 – Malorie Peacock – Proven Techniques for Proving Damages

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In this Trial Lawyer Nation podcast, Michael Cowen sits down with Cowen | Rodriguez | Peacock partner, Malorie Peacock, to answer the questions of our listeners. This show focuses on how to prove your client’s harms and losses at trial.

The first listener question is regarding the idea of whether 3X the medical bills is typically what you use to determine damages or does that only apply in certain cases? Michael recalls being taught the 3X “rule of thumb” back when he was first starting as a trial lawyer, but since then, no longer does for several reasons. First and foremost, times have changed along with insurance company practices. If an insurance company or defense attorney does start to talk to you about 3X medical bills, it’s likely because your case is worth a lot more than that. Instead, Michael focuses on what a jury might do when they look at each element of damage (pain, mental anguish, impairment, or whatever the measure of damage is in a particular state) individually and determine what they feel compelled to put in each blank. That, paired with what Michael calls “piss off factors” based on things the defense might do to compel a juror to give full justice for, becomes a number he’d like to keep as high as possible. Of course, he also takes into account whether his client is for some reason not likable or the defense is super likable, which can also affect the jury’s motivation in an adverse way for his case. Malorie also brings up another important note on the effects of jurors taking into consideration the percentage of fault even though they are instructed not to do so. To which Michael elaborates a little more on how to potentially work the messaging of that to the jury.

The next question by our listeners is how do you work up damages, especially in a smaller case that doesn’t warrant bringing in experts or producing lots of exhibits? Michael starts to answer this question by clarifying that experts generally do not help work up damages, but rather help to prove calculations on future medical expenses or a vocational loss. Having said that, with regard to the human and non-economic damages, he believes people who come in and talk about your client, how they were before, what they went through, and what they are like now can have the biggest impact. This also doesn’t cost any money toward the case. It does, however, take a lot of time in order to visit with these people to talk through what they know of the client before, during, and after, as well as collect photos or videos showing the client in a different state prior to suffering damages, etc. Michael discusses how this approach, even by taking the time to meet with people and learning your client’s story better, will make you more authentic in the courtroom which can have a profound impact on your case. Malorie sums this point up reminding us that all of our clients are more than just their injuries.

The next question they explore is regarding a wrongful death case without economic damages, which Malorie takes the reins on and starts with conveying just how hard it is to put a number on life when no amount of money will ever replace someone’s loved one. She goes on to elaborate that although you can do focus groups, they are not truly predictive. It will always boil down to the 12 jurors you get on any specific day in court who will ultimately put that number on a case. Michael adds that liability is what really tends to drive the number in wrongful death cases and it sometimes becomes very hard to have a conversation with the surviving family member(s) on the difference in the value of life versus the value of a case. He also shares how going to trial in a death case is extremely tough for the family as they relive one of the most painful events in their lives, which places a real responsibility on us as lawyers to make sure we are doing the right thing. Whether that means turning down an offer that is not sufficient to go to trial to fight for more and making an informed choice while understanding upfront the process and pain that will likely come with going through the details all over again. Malorie also describes the importance of knowing your client (a common theme throughout this episode) and understanding their goals, hopes, and struggles for their future to be able to help guide them through the conversation about money.

Proving grief is another topic Michael and Malorie explore with the belief from some jurors that everyone dies at some point. They both agree that there is a definite difference between dying when it’s time and dying when it’s not your time because of a tragic incident. Michael also points out the balancing act that occurs when you don’t want to “torture” your client and make them cry by bringing up all the pain and suffering they encounter now that their loved one is no longer here vs. focusing on the hopes that were and the plans for the future that have now changed because of the actions of someone else. He also points out that this is a good time to utilize experts like grief counselors and let them talk about the pain and suffering your client is, and will, experience due to the loss as well as the grieving process and the natural cycle of grieving to help paint an appropriate picture for the jury. They also give several other examples of ways to express the pain and loss without having to pull tears out of the surviving family members directly.

Michael and Malorie continue their abundance mentality by sharing so much great information in this episode on topics like when to submit and when not to submit a medical bill toward damages; avoiding the status quo and navigating a case to motivate a jury to give your client the justice they deserve; where do your client’s harms and losses fit into the greater story of the trial; an ideal “3 act” trial story through the juror’s eyes; how not to present your client’s harms and losses in a vacuum; how to get your client’s actual story (hint – it’s not what you might think); tips on utilizing psychodramatic methods; expediting the process of spending time with your client to understand their story; how Pareto’s Law can be applied to your docket; and so much more.

These Table Talk podcasts could not happen without the interaction and questions that are submitted by our listeners. 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 all of you.

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