Trial Lawyer Nation show

Trial Lawyer Nation

Summary: Michael Cowen, and his guests, explore critical topics distinctive to the legal profession - specifically focusing on developing extremely efficient law practices, securing a competitive edge in the industry, and wildly excelling in the courtroom.

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  • Artist: Michael Cowen
  • Copyright: Copyright Trial Lawyer Nation 2018

Podcasts:

 36 – David Ball – Finding the Alignment – Understanding What Jurors Want | File Type: audio/mpeg | Duration: 1:22:04

In this episode of Trial Lawyer Nation, Michael Cowen sits down with a special guest, Dr. David Ball. David is a trial consultant, speaker, and one of the “fathers” of the book “The Reptile in the MIST.” His name and his books have been mentioned on numerous episodes not only Michael Cowen, but many of our Trial Lawyer Nation guests. With several books of David’s to choose from, Michael can’t help but note how “David Ball on Damages 3” has been very useful in helping him craft opening statements and serving as an outline for many trials. He also highly recommends all trial lawyers have this book within arms-reach of their desk (more on this later in the episode). And for those trial lawyers who don’t know David personally, it is important to also note he has probably done more good for trial lawyers than anyone else in the industry. Having started down his path many years ago, David’s mission of trying to help trial attorneys make complicated things clear, originally came from his background in theatre, where much of what he had learned in theatre has been extremely useful for trial lawyers. In fact, working with a more classical repertoire theatre with works from Shakespeare, he wondered how he could make those plays crystal clear for the audience who is listening to it and how it might relate to the legal industry. His conclusion? “I realized lawyers have 2 problems: 1. They’re boring as hell and 2. They’re not very clear about what they’re talking about.” Today David describes what he does as helping to strategize cases to maximize the principles of what we’ve learned in the neurosciences and apply it to how people really make conclusions, how decisions are made, how we know things, and how logic has very little to do with any of it. Essentially, working as a bridge between the neurosciences and the courtroom. So, how do we get jurors to see things the way we want them to? Logic doesn’t deal with the law school version of tell them your case, they’ll understand your case, and if you’re in the right, they’ll give your client a just verdict. Justice has nothing to do with how people make decisions. How do we translate that into things you’re allowed to do in trial and in a way that will motivate jurors to do what we want them to do? David says, people don’t make their decisions on the basis of “justice,” but rather justice is simply the result of something you think you want. He goes on to explain why trial lawyers need to look at what they’ve got and then put this “stew” together into something someone REALLY wants, for it to end the way we want it to. The whole process of trial, as David describes it, is an alignment. David continues to describe this alignment by combining solid research along with all the things he’s learned in theatre about what real storytelling is. The fundamental thing about The Reptile, he describes, is by getting the jurors to want themselves to be safe and live in a safe world, that becomes their want. He also points out that in order to get their want, he also needs to get his client’s “want,” which is money. Michael adds to this by stating the only power the jury has in the courtroom is to give or deny money in the case. David goes on to say that if the attorney is presenting their case well, jurors will understand if they give a good verdict it will make their world safer, but also giving a bad verdict will make their world a more dangerous place than it is now. In other words, once the jurors walk into the courtroom, they will be walking out with either a safer world or a more dangerous world, but it will never be the same way as when they walked in. Furthermore, David explains when you ask a client why they are doing the case, not only will they say it’s because they need the money (compensation) but they also want to make sure this won’t happen to anyone else. To expand on his point, David shares an example from his early years watching the trial of a case involving a weal...

 35 – R. Rex Parris – Cognitive Science and the Persuasion of Jurors | File Type: audio/mpeg | Duration: 1:33:58

In this episode of Trial Lawyer Nation, Michael Cowen sits down an accomplished trial lawyer, speaker, and Mayor of Lancaster, CA, R. Rex Parris, for a conversation revolving around the intersection of cognitive science and the persuasion of jurors. Having acquired his knowledge over the course of his career, Rex has been able to leverage his deep understanding of cognitive science in obtaining dozens of 7, 8, and 9-figure verdicts and settlements, along with a historic and record-breaking $370,000,000 defamation jury verdict. Michael’s curiosity starts the conversation off by asking Rex what he did do to obtain the skills he’s developed; which Rex breaks down his journey into its simplest form stating he first had to learn it was a “skill.” Many individuals think there are only a certain number of people who are born to be trial lawyers when the reality is they are just skills to be learned. Rex goes as far as to say that anybody who gets through law school has the capacity to learn those skills and do a magnificent job in the courtroom. He shares how he went on to Trial Lawyers College and continued on to attend many CLE seminars, public speaking and voice seminars, and began studying a lot of cognitive science, all of which to learn how people make decisions, how to persuade people, and how to interact and engage people. Michael shares how the more people he meets at the top of the industry, the more he sees the commonality of their constant desire to learn more. Focusing on the things Rex has learned through his studies of cognitive science, Michael turns his attention to finding out the things most helpful to Rex in the courtroom. As Rex sees it, everything from where he stands, to where he looks, and what he does with his hands and body is important. He goes on to talk about keeping his fear level down by controlling his heartbeat, which he knows he wants to keep between 90-100 bpm in order to stay in “the zone.”   He also knows how to lower his heart rate when it goes over 100 through a technique called “combat breathing” along with taking note of several other observations within the moment, in order to snap back into the present refreshed and ready to go. To that point, Michael shares how when he’s in a trial, he tries to feel the joy of being in trial and let the outcome take care of itself stating “the more I want to win and worry about the outcome, the less I trust the jurors,” which inevitably comes through in your body language or eye contact. Instead, Michael purposely decides he’s going to trust the jurors to do the right thing, and it always seems to work out better. Rex then discusses his views on utilizing a classic reversal in the courtroom where he describes it as “in every scene of every movie or play there is a reversal of value” (using the example of how Star Wars starts in the desert and in the next scene you’re in the empire) the greater the contrast the better. In the courtroom, Rex talks through how he uses a lottery ticket analogy, where his client holds the “winning ticket” to the super big jackpot and the only thing he needs to claim it is to give up some things. He then proceeds to talk through all the things his client has to give up, stating everything that has been given up as a result of their injury without talking about the things that have been done to his client. The reversal then comes into play at the end, where Rex turns to the jury and asks if any of them want that ticket. They continue to discuss the differences of what a client has gone through and what they’ve lost, and Rex recognizes that most lawyers have been trained to present cases in a pain and suffering context as to what’s been done to their client but, he points out, in most cultures, “bad stuff” doesn’t have a value. Well-being is what equals wealth in America, citing what Steve Jobs would have given for a pancreas that worked. Which is why during the trial,

 34 – Sonia Rodriguez – Hindsight in the PI World | File Type: audio/mpeg | Duration: 52:14

In this episode of Trial Lawyer Nation, Michael Cowen sits down with Cowen | Rodriguez | Peacock partner, Sonia Rodriguez, for another installment of TLN Table Talk to answer the questions of our listeners. This episode focuses on advice for our up-and-coming personal injury attorneys on the things we know now and wishes we knew earlier in our careers. Starting right off in the broad sense of the industry, we start with a question about what advice would we give to a lawyer who is in the first 2 years of practice. Learning the hard way, Sonia states why it is critical for a successful personal injury law practice to understand the difference between a PI practice and a typical business practice when you are talking to bankers and lenders. The discussions you’ll have with bankers and lenders about lines of credit and assets in regards to your practice can sound like a foreign language to certain bankers, so you really need to find a bank that knows the PI practice and knows that many times the assets you have are going to be intangible, and are more likely to be in your file cabinet or on your server. Michael also points out how the banking regulations have also tightened up in recent years where it has become harder for PI lawyers to borrow against their case list. To this point, Sonia suggests once you have a few years under your belt, you should start saving/hoarding your money so you can borrow against your own investments and savings when you want to. They both agree once you hit your first big case, you don’t want to start living like that has become your new lifestyle every year or every month and you need to live below your means for a long time. Michael recalls avoiding the temptation to go buy the expensive Mercedes and shares how his first house was only $67,000, which was in stark contrast to other lawyers who went out and bought big houses and could barely pay their credit cards or make it month to month. It was with this foresight and now shared knowledge, that Michael reveals his early financial habits have led him to build the successful practice he has today. Providing additional advice for PI lawyers just starting out, Michael weighs the pros and cons of gaining experience by starting in a district attorney’s office (hint – it’s not advised…and for good reason). He goes on to suggest several much better ways to gain experience and learn from other attorney’s experience, this podcast being one of them, which will prove to be more advantageous in building a solid foundation for a personal injury practice. Thinking from the other end of the spectrum, Sonia also offers advice regarding business relationships and how they are bound to change over time and shares the key factors you need to consider before entering into a partnership, regardless of the current or past relationships status. A lesson the majority of seasoned attorneys would likely agree with, hindsight being 20/20. Michael, being one of them, recounts one of the things he knows now that he wishes he knew earlier, and how he wishes he had spent a seemingly small amount of money early on to hire a lawyer to draft his agreements with other lawyers. Being lawyers, he says, “we think we can do it ourselves,” and in the process, we end up overlooking the holes in an agreement and only looking at it through rose-colored glasses as if nothing will ever change in the relationship. Michael reveals, in his own hindsight, the amount of money he’s paid out on legal fees to draft things for him now, has turned out to be less than 1% of what he’s paying people that he wouldn’t have had to pay had he had those agreements in place. LESS THAN 1%! Sonia transitions by discussing the amount of stress brought on day-to-day in this industry. Our bodies were never designed to handle these amounts of mental or physical stress that can come with a heavy litigation practice, she says, and on the plaintiff’s side,

 33 – Julian C. Gomez – Autonomous Vehicles: People v. Machines | File Type: audio/mpeg | Duration: 1:03:28

In this episode of Trial Lawyer Nation, Michael Cowen sits down with automotive products liability attorney, Julian C. Gomez, to discuss his expertise on product cases, specifically dealing with autonomous vehicles (AKA: Robot Cars). Most attorneys can relate, but the gist of every other talk Michael has ever heard on this topic, before Julian’s, was that we’re going to get robot cars, they’re never going to crash, and they’re going to put everyone out of business in 5 years. This is certainly what the automotive industry is trying to promise, but the data we have to date suggests otherwise. Julian’s beginnings, getting into the field of automotive product cases, started back when he clerked for a judge who was the first in the country to try a Ford Explorer/Firestone case. He was able to sit through the trial and learn from some of the best lawyers in the country, which sparked his interest and set him on this path. When Julian started doing automotive product cases, he noticed the engineers were starting to address the legal issues as opposed to the engineering issues behind them. He points out that the engineering is really not all that difficult – the vehicle uses data gathering devices, puts the information into a data processor, which processes the data based on an algorithm, then an answer or result is spitting out, and makes the vehicle do something. Getting too far into the details can sometimes overcomplicate things, which Julian compares to the area of autonomous vehicles and states “I don’t have to be a computer engineer, to know that my computer is broken or to know that it’s working.” Julian then describes the different levels of crash avoidance technologies (1-6) to include all sides of the vehicle along with the various types (signaling warnings to taking full-blown actions with the vehicle). He goes on to talk about how the levels start to gray out based on human data input as well as how there really are no “driverless” vehicles on the road today, despite what you hear on the news. He also discusses a recent AAA report addressing the confusion regarding the different types of autonomous systems due to the industry, and manufacturers, because there is not a standardized naming structure for these systems. Interestingly, Julian explains the current way they are measuring the level 3-5 type autonomous vehicles is through disengagements, where the human driver has had to take over the car’s actions instead of it driving itself. In comparison, Apple had roughly 1 disengagement every 1.2 miles whereas, on the opposite end of the spectrum, Waymo had roughly 1 disengagement every 10,000 miles. And while there is a huge disparity between the top performers and the bottom, and numerous tragedies throughout the industry, Julian points out the real problem is there haven’t been enough vehicle miles driven to know how safe they are going to be. He also talks about the millions of vehicle miles driven each year compared to the thousands of deaths that occur on the road, and then extrapolates the data from when Uber had its recent fatality, based on the number of vehicle miles driven by autonomous cars at that point, to determine we would be experiencing around 1.6 million deaths each year. He brings this point home by stating even if you cut that number in half multiple times, it’s still much more than what is happening today on our roads. Another problem Julian points out is the conflicts that occur between an objective algorithm system in the computer within the car working with a human subjective system. He gives a great example of how we’ve all seen cars, even before we started driving, interact in different ways when the driver is planning to turn right (IE: roll slowly through the light, even if it’s technically not the correct way). As humans, we are able to gauge how much space/time we have between our vehicle and the vehicle turning in front of us,

 32 – Jim Adler – Building a Firm on Reputation | File Type: audio/mpeg | Duration: 1:26:58

In this episode of Trial Lawyer Nation, Michael Cowen sits down with prominent Texas attorney, Jim Adler, AKA “The Texas Hammer,” for a discussion on building a law practice on a solid reputation. Running an efficient law firm that has allowed him the ability to spend quality time with his large family (4 kids and 9 grandkids) didn’t happen overnight. Having started his practice doing everything by himself, learning to delegate and understanding the business and marketing side of running a firm are two areas where Adler has focused on the most to build the successful law firm he has today. Adler recalls back in “those days,” when he was starting out, thinking that it would have been ridiculous to believe he would ever make $100,000. When he started, he was struggling to support his family and manage to do everything himself. He initially started advertising in the “green sheets” and got a little business. But it was when he started using a company called “Lawyers Marketing Services,” that he saw more success. He was told to “try it, you’ll like it,” and went into TV advertising which quickly had his phone ringing off the hook. Of course, it didn’t come without its fair share of social pressures not to advertise to the public back then, due to the stigma that other attorneys attached to the tactic. Adler has also found himself bearing the brunt of parodies on TV, even being referenced on Beavis & Butthead as “Joe Adler.” To which Michael points out, “you know you’ve made it when a national tv show is referencing you.” Now going on his 5th generation of TV viewers, The Texas Hammer has found himself up against finding the attention of younger people who don’t want to pay for TV, AKA “cord cutters.” These are the individuals who are watching entertainment on their Slingbox, Roku, PlayStation, Netflix, and YouTube, which makes it especially hard to reach them. People don’t have “TV” anymore, so you have to find them elsewhere, which is why Adler has a saying in his firm, “if we’re not changing, we’re dying.” It is this mindset and desire to continue to learn and adapt (more on that later in the episode), which continues to keep his name and brand so strong. The conversation then turns to when Adler became partners with a well-known U.S. District Judge, Robert O’Connor, who wanted to get back into practice. Judge O’Connor knew that Adler was wasting his time doing divorces, bankruptcy, and real estate and this was “the age of the specialization.” Taking that advice and focusing on personal injury cases has grown his firm to a staggering 30 attorneys and roughly 300 staff! Michael and Adler both agree that having so many people working for the firm is a lot of moving parts. But as Michael points out, it can be “a lot harder to run a business than to be a lawyer.” Adler goes on to describe the way his firm has created a departmentalized system to take care of clients every step of the way. His intake department has specialists that only take new client calls and are separated from an operator who accepts all calls. His case management department with case managers who are assigned to each case and are supervised by a lawyer essentially works like a mini law practice within his law firm. The packaging department with specialists in preparing settlements and gathering all the hospital records, are all just the tip of the iceberg when you look at the organization he’s built. In fact, evolution has been long and everchanging with the times. Adler recalls how all of these departments work well, but he received feedback that clients hated being passed around. Since then he has utilized his case managers to tee up the transition better and give the client a clear sense of what each step in their case is going to be. He goes on to describe their closing department, as well as their administrative departments and accounting departments, a strong litigation department, and an internet department,

 31 – Malorie Peacock – Proven Techniques for Proving Damages | File Type: audio/mpeg | Duration: 1:10:48

In this Table Talk episode of Trial Lawyer Nation, 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 ...

 30 – Mark Kosieradzki – Galvanizing Depositions | File Type: audio/mpeg | Duration: 53:15

Mark Kosieradzki – Galvanizing Depositions In this episode of Trial Lawyer Nation, Michael Cowen sits down with well-known attorney, author of 30(b)(6) Deposing Corporations, Organizations & the Government  (TLN listeners can use “30B619” for an exclusive discount) and Deposition Obstruction: Breaking Through, and long-time presenter at countless legal events, Mark Kosieradzki. This is the best legal podcast for new lawyers. Mark recalls growing up with parents who were scrappy, rightfully so given their startling history, who instilled in him to stand up for principles, ultimately leading him down the path of becoming a trial lawyer. He points out that many go into the field with a “win at all costs” type mentality, but his father always told him that “if you cheat to win, you really didn’t win,” which he continues to carry with him throughout his successful career in law today. Mark describes one of the most successful tools he has learned to use in the courtroom are the rules themselves. He finds it to be a lot less stressful when you use the rules to get to the truth and if you play by the rules, you can force the other side to play by them too, which most times is not to their advantage. When Michael asks him how he might know if the opposing side is hiding something from you or not telling the truth, Mark very candidly replies that he starts with the premise that they are, and that trial lawyers want to tell the jury a story whereas a litigator wants to hide evidence. He goes on to impart that when they say they are going to give you “everything,” it’s really more like code for saying we’ll give you everything that doesn’t hurt their case. Mark shares his evolution of new techniques regarding how he approaches depositions. He starts with a lot of case analysis, storyboarding, puts all his information in “buckets,” and then looks at what he’s trying to accomplish. With that, he starts with the assumption that one person could provide all the information, then structures an outline of what this one person could tell him and works at it to identify what documents are being electronically stored. Then he creates a request for production but doesn’t serve it, knowing there will be immediate objections. Next, he creates a 30(b)(6) designee deposition with a schedule of documents in it but doesn’t request the documents. We’d like someone who can provide all known documents in the organization that exist in this category, Mark continues. Where are they located, how are they organized, and most importantly, what are the methods available for searching? Without having requested anything, we are establishing the most effective and efficient way to request the electronic information, while also preempted all the boilerplate objections before we ask for them. Michael wonders about getting any push back regarding doing discovery on discovery to which Mark explains there is no discovery on discovery because you haven’t asked for the documents yet. Which is brilliant! Michael asks how Mark structures his life to where he has time to storyboard, plot out cases, take depositions, and then craft his cases. The simple answer, Mark replies, is to just say “NO” to cases, continuing to say that his firm currently turns down 6-8 cases a day and work with small caseloads. Mark remembers starting out as a volume lawyer with 250-300 cases and works with the mentality of getting as many cases as you can and then you settle them based on getting each case’s fixed value with as little work as possible. That type of nonsense, however, assumes that the other side determines the value of each case. He’s also found that by spending more time up front on a case, their hourly value has gone up significantly because they take the time to get the evidence and prove each case.

 29 – Keith Mitnik – Thoughtful Prep for Winning Cases | File Type: audio/mpeg | Duration: 1:32:59

In this episode of Trial Lawyer Nation, Michael Cowen sits down with renowned attorney, host of the Mitnik’s Monthly Brushstrokes podcast, and author of “Don’t Eat the Bruises – How to Foil Their Plans to Spoil Your Case” published by Trial Guides [TLN users can use discount code “MITNIK19” to purchase the book]. With a $90M verdict, ten 8-figure verdicts, and a ton of 7-figure verdicts under his belt, Keith’s vast knowledge of trying civil court cases is truly extraordinary, to say the least. Michael hits the rewind button right up front to ask Keith how he learned to become a trial lawyer. Keith recalls how he knew from a very early age that he wanted to become a lawyer, but always assumed he would become a criminal lawyer. It wasn’t until he asked a professor of his about connecting with some of the best lawyers in Orlando, which happened to be partners of his professor, that Keith learned about other opportunities outside of criminal law. His journey to becoming a civil trial lawyer was organic but swift, having interned for the lawyers his professor introduced him to, and trying his first case only 2 months after becoming licensed with the firm. Keith attributes much of his learning back then to being allowed to dig right in and learn from being “in the trenches” versus following someone around for 10 years before getting any “real” experience. It also helped that both his mentors were exceptional lawyers who came from opposite schools of thought, where one was the type to turn over every stone and simply outwork the other side, and the other was a brilliant free thinker in the courtroom. Michael also points out the myth that it is hard to get trial experience these days, whereas he suggests doing what he did in the beginning: get out there and tell other lawyers you’ll try their Allstate cases, and there are a lot out there to get experience from. It is also important to recognize there is value to taking a case to trial well beyond the verdict or settlement that is reached, especially for attorneys looking to get experience. Keith also advises young lawyers going into the courtroom that “it’s not about being pretty.” Jurors are not deciding about things based on how polished you are. They are deciding it based on your integrity, believability, honor, honesty, AND the preparation you did to get there. Not just in the hard work, but in the mental preparation of thinking through how it’s all going to play out and putting yourself in the best framework to maximize your chance of winning. And all of that happens outside of the bright lights and intimidation of the courtroom. Michael notes that one of the things he’s taken away from Keith’s books, podcast, and other teachings, is that he really takes the time to think through his cases and the best way to present them, but asks Keith exactly how he structures his life in a way that allows him to have enough uninterrupted time and deep focus to do the case right. Keith says anyone can learn to be a good talker, but what separates you from the pack is the thinking that goes on before you enter the courtroom. Most of the good talkers he’s seen have just gotten good at repeating the same, somewhat canned “routine,” or have gotten good at memorizing those lines. Whereas the exceptional lawyers separate themselves from the others because of the mental process of planning before they ever walk in and recognizing that the other side is going to put up a good defense, as they always do. Essentially preparing to dismantle their defense and ideally leave them with nothing. Keith goes on to explain not only will that set you apart, but it’s also the fun part of trying a case because you can be working toward solving the problems of the case no matter where you are in litigation. Keith then reminds us of Sherlock Homes and how his greatest gifts were not his analytical strengths or his extraordinary kno...

 28 – Malorie Peacock – Storytelling in the Courtroom | File Type: audio/mpeg | Duration: 47:39

In this episode of Trial Lawyer Nation, Michael Cowen sits down with Cowen | Rodriguez | Peacock partner, Malorie Peacock, for another installment of TLN Table Talk to answer the questions of our listeners. Today’s topic focuses on storytelling in trial and identifying the “characters” in your case. They begin with the most obvious question on today’s topic, why do we want to tell a story instead of just presenting our facts? Michael explains that people don’t learn through cold, clinical facts and if you want a juror to connect to your client’s situation, they must relate to it. The easiest and most effective way for them to relate is oftentimes through a story. Michael adds that we are genetically programmed to think in story, going all the way back to the campfire in the cave scenario, also noting that people can tell when a story is not right. Malorie also describes what stories are on a very basic level, in that they aren’t something that is made up for a trial, but rather something that is very specific and still based on facts. A sequence of events with a beginning, middle, and an end with characters who have motivations for doing things. Conversely, the real danger of not having a story, Michael explains, is that the jurors are going to come up with a story. For Michael’s team, the story might be about the greedy trucking company who pushed their drivers to drive more hours than are safe on the road, just to make more money. Whereas, a different story that could be formulated by a juror on their own might be about a greedy plaintiff’s lawyer who took a case and is trying to make a lot of money from it. And because the juror wants to be the “hero” of the story, they might stop the attorney from getting that money. This puts even more importance on the story that gets told, for the client’s benefit. Does every story need to have a hero? Yes, and it’s always the same group of heroes (the jury). Michael refers to a book written by Carl Bettinger called Twelve Heroes, One Voice, that has really helped him to understand the dynamics of storytelling, heroes and villains, and how the jury must be the hero in a trial. He also notes that this book transformed his thinking from where he had thought he, as the attorney or his client needed to be the hero when in reality, the only ones who can do anything heroic are the jurors, because they’re the ones who can save the day. Michael points out that it is important when starting to storyboard your case that you carefully consider who the “villain” is while also keeping an open mind to the idea that it could always change before going to trial. Michael has gone so far as to research and study playwriting and screenwriting books to find out what the common characteristics of villains are since most people have learned about heroes and villains through watching movies or tv and he wanted to be able to give people a story structure that they can relate to. He lays out his findings of the 5 ideal characteristics of a villain as he found them to relate to the courtroom, those being that they are: Powerful, Intelligent, Immoral, Deceptive, and an Individual (not a collective or an entity). Michael and Malorie go on to talk more about the immorality of these villains and the selfish quality that they portray, while also pointing out that these people are not typically evil just for the sake of being evil (like in some movies), but rather are just willing to risk others for the sake of their own gains. Again, it’s not that they actively set out to kill someone that adds to their guilt, but rather the act of knowing something is wrong and then doing it anyway, also known as conscious indifference, or as Malorie points it out, as a selfish quality to such villains. Why is it so important to make the villain an individual versus a company or a collective? Michael explains that we just haven’t been programmed in our upbringing to see the villain as a corporation o...

 27 – Michael Mogill – Becoming the Obvious Choice in Your Market | File Type: audio/mpeg | Duration: 54:09

In this episode of Trial Lawyer Nation, Michael Cowen sits down with author of The Game Changing Attorney – How to Land the BEST CASES, STAND OUT from Your Competition, and Become the OBVIOUS CHOICE IN YOUR MARKET, and legal marketing expert, Michael Mogill, for a discussion on how he’s helping law firms drive meaningful results. Mogill and his team at CRISP Video produce videos for attorneys across the country in order to help them differentiate themselves and stand out from their competition. Which, in short, means they do everything from filming videos and editing to running ads and driving leads for their attorney-only clientele. Essentially, everything from start to finish in the legal video marketing space. Mogill’s beginnings started when his family immigrated from Europe when he was 4 years old. They didn’t speak English and basically came with just $500 in savings. And while he’s always been entrepreneurial, having started a web company at age 13 writing HTML out of his house, he actually studied to be a doctor, took the MCAT to get into med school, but wasn’t sure if that was the path for him despite the pressures of his Jewish family. So, he took a year off and got a job first washing dishes at a dive bar and then washing lab equipment at the CDC. In the meantime, he bought a camera that he figured would just be a hobby and perhaps a good life skill to have. Then, in 2008, he started a video company, called CRISP, again with outside pressures of people telling him it wouldn’t work and if it did, he’d never be able to compete with the big agencies. This was also a time when YouTube was just starting to take off and videos were nowhere close to as accessible as they are today. Mogill explains that it wasn’t the simplest sell back then, nor was it easy (recounting 21 failures before the company really got off the ground); citing that his big breakthrough finally came to him through the hostess at a Texas Roadhouse at a time when he didn’t even have enough money for next month’s rent. The story he tells of his rise from rock bottom is one you simply have to hear to believe. Spoiler alert: He’s made it pretty big in the video production space having worked with companies like Coca-Cola and Red Bull. His shift to work 100% with attorneys and law firms wasn’t necessarily expected or even planned at the outset, and also came from unlikely beginnings paired with the drive to succeed. Digging right in, Cowen asks Mogill the big question, as in millions of dollars big, of how can solo and small firms compete with their marketing (video or otherwise) and not get lost in the noise of the big firms that have $5M+ marketing budgets? And while Mogill boils it down to simply differentiating yourself, his insights on the content being produced in order to create an emotional connection with potential clients, versus joining the “we’ll fight for you” crowd, are thoughtful and CRISP (pardon the pun). Mogill uses Ben Glass’s video as a great example where his video talks more about the children that he has adopted in order to create a connection, with the viewer with little information about his firm. Which may seem to counterproductive when trying to promote a law firm, but to Mogill’s point, it’s much more effective to draw people in, using emotions and feelings they can relate to instead of a laundry list of the services your firm can provide. That “why” behind an attorney’s journey into wanting to practice laws also helps to create a sense of authenticity as well as to humanize each firm. Mogill talks about the state of legal marketing along with the saturation of many firms focusing on the aspect, that it is all about the money and boasting about the size of cases won. He notes how today’s society wants to work with companies who go beyond the money and care about individuals,

 26 – Jack Zinda – Success by Design | File Type: audio/mpeg | Duration: 58:29

In this episode of Trial Lawyer Nation, Michael Cowen sits down with an accomplished trial attorney, Jack Zinda, for an inside look at his bustling personal injury law practice. Built from the ground up in a county where seemingly no one wanted to start a law office because the juries are so conservative, Jack has built his practice up to include 3 offices with 63 people on his team, 23 of which are lawyers. Jack’s humble beginnings working in his father’s restaurant washing dishes and waiting tables, contributed to him becoming a great trial lawyer by teaching him to learn how to talk to people, which he says was “great training.” Michael admits that he actually looks for “waiting tables” on the resumes of his potential lawyers as he understands that such experience comes with being able to deal with people, even when they are being unreasonable, among other reasons. As they dig in deeper to Jack’s practice, he directly correlates the growth of business to an exercise he did after reading the book “The E Myth” where he laid out a plan for where he wanted his firm to be in the future and worked backward from there in order to develop a plan of action. He also made sure to account for his core values and not giving up practicing law seeing as one of his top motivators for getting into Personal Injury law was to help people, and he never wanted to lose that. Michael and Jack also talk through their views regarding the use of consultants and how egos sometimes get in the way of success in this industry. Jack makes it extremely clear that “none of what [he’s] done is original” and that he’s simply taken what he has learned from others and built upon it to become successful. It also, from Jack’s perspective, comes down to the systems that get put in place and following them consistently; an example being that each lawyer in his firm is highly encouraged to attend two networking events per week in order to continue to build relationships. As Jack reflects on the continued growth of his practice over the years, one of the most important decisions he discovered was who he hired to work at his firm. To prove his point, he describes the scenario where if you hire the most brilliant and amazing people to work for you in every aspect of your business and you have poor systems in place, chances are that you will likely still be successful. Whereas, even if you have the most robust and well-oiled systems in place, if you hire people who are unmotivated and don’t want to work hard, you are likely to fail. He goes on to say that even experience can be overrated when looking to hire someone. At the core, when looking to add people to your organization, people need to be hungry and driven, they need to be smart and organized, and they need to be hard working. Michael and Jack also talk through their hiring processes to get the “right people” into their firm. Surprisingly, the interview has very little to do with it and sometimes… neither does a candidate’s aspirations of working with your firm! The conversation shifts to internal systems where Jack has gone so far as to hire a developer to create their case management system to his specifications. And not only has he found it to be a great way to customize his practice to run the way he wants it to but also works as a great training tool for everyone in his firm, even the most seasoned attorneys. Jack points out that even the simplest of things go into the firm’s checklists and procedures such as “read the local rules,” which, as easy as that might sound, he points out that it can be vital when working in as many jurisdictions as his firm does. Jack has also raised the bar on training and development within his firm by creating a position that solely focuses on it. Listening to Jack’s description of how he came up with and implemented this position is likely to deliver shock and awe to anyone who runs a firm, as it did for Michael during this podcast.

 25 – Sonia Rodriguez – Defeating Defense Medical Experts | File Type: audio/mpeg | Duration: 41:56

In this episode of Trial Lawyer Nation, Michael Cowen sits down with Cowen | Rodriguez | Peacock partner, Sonia Rodriguez, for another installment of TLN Table Talk to answer the questions of our listeners. This episode focuses on defense medical “experts,” or as Michael calls them, “paid opinion witnesses.” Michael calls this spade a spade right from the get-go, in that the title of “defense medical experts” is a sham. Many times, he says, they are called “independent experts” when they are neither independent nor an expert, not to mention the fact that they are hand-picked by defense lawyers who pay them for their testimony. Michael believes it is a huge fraud being perpetrated on our clients, on the jury, and on the court system. He says, typically “we know what their report is going to say once we hear their name,” further exemplifying this flaw in the system. So, Michael asks, “what do we do to expose this and show the jurors the truth?” Sonia believes it is critical we expose the relationships experts have with the lawyers who hired them, how often they’ve been used by that firm or the defense industry, as well as how much money they make from that business. She also uncovers what percentage of their business is spent on reviewing files for defense lawyers vs. practicing medicine, in some cases. All of which can go a long way in revealing these witnesses for what they really are, which is “paid opinion witnesses.” Michael also explains how he doesn’t like to even use the word “expert,” which gives them the mantle of that title. He goes on to discuss the harsh reality and his distain for medical professionals who misuse their degrees to go against the very oath they have taken to “do no harm,” while we represent legitimately injured clients, and they do it for money! They both agree how uncovering the financial ties and bias of these witnesses also says a lot about them because they could likely be making much more money by seeing patients, but instead are reviewing cases for a defense lawyer. Michael also talks through a real example of what he’s run into on how these medical witnesses come to find themselves making money in this way and how their path toward testifying can ironically parallel his client’s paths. Michael and Sonia share a plethora of examples regarding their tactics on utilizing depositions, both past and present, to build their cases, ranging from networking with other attorneys and medical professionals to leveraging amazon.com in the middle of a deposition. Sonia explains how you cannot go into a deposition with a broad brush, but rather be laser-focused and able to drill down on even a single word, in some cases, to make your entire case. And to sum things up, Michael talks through the very polarizing two ends of the spectrum his preparations take him with defense medical experts, where they are likely to either be way “off the deep end” and obviously working as a paid witness, or he will focus his energies on essentially turning them to help his case. The strategies they both describe are pure methodical genius. The conversation shifts to talk specifically about the tone and demeanor both Michael and Sonia use when deposing paid medical witnesses. They both agree the tone and demeaner you use in a paid medical witness deposition is extremely important, as it will likely be replayed for the jury at some point and jurors will also be watching to see how you handle yourself in this situation, the same way they do in the courtroom. We, as plaintiff attorneys, also need to be cognizant of how we are approaching the deposition so it leads the jury to come to their own conclusions regarding the credibility of the paid medical witness and their testimony. It also becomes reflective for the jury to feel the danger themselves of allowing these paid medical witnesses to get away with using their titles as a form of “expertness” in exchange for being paid by the defense.

 24 – Michael Leizerman – The Zen Lawyer: Winning with Mindfulness | File Type: audio/mpeg | Duration: 1:04:01

In this episode of Trial Lawyer Nation, host Michael Cowen sits down with a brilliant trial lawyer, national speaker/lecturer, and author, Michael Leizerman. Cowen has learned an enormous number of methods and approaches over the years from Leizerman who takes mindfulness to a whole new level in and out of the courtroom. The discussion begins with an in-depth look at the “beginner’s mind” and understanding how it adds to a case, and life, infinitely. Leizerman uses the example of the hierarchy of karate, where becoming a “black belt” is commonly misconstrued as becoming a “master,” when it simply means you are at the first level of Dan, meaning you are now a beginner once again. He also points out that he takes it upon himself to know when he feels like he has mastered anything, he needs to remind himself he is just a “beginner,” otherwise the jury will, his wife will, or life, in general, will remind him. As the discussion progresses, Leizerman and Cowen discuss the idea that in the beginner’s mind, there are many possibilities, whereas, in the master’s mind, there are few. Leizerman likes to bring this mindset to many aspects of his work and discusses how he uses it in depositions, saying, “There’s a feeling like I’ve never done one before” while holding confidence about himself knowing exactly what he wants to get out of the time. In each case Leizerman approaches, he works to become mindful of what he calls “the 5 core truths,” which are also the basis of his book The Zen Lawyer: Winning with Mindfulness, as well as an essential part of the workshops he puts on with Joshua Karton [link to his episode] and Jay Rinsen Weik. He describes the mindfulness around the 5 core truths (Physical, Emotional, Logical, Motivational, and Zen) as being seen as simultaneous truths in every case and with the understanding that each core starts with the lawyer and their own understanding and experience. Leizerman talks through examples of each core including a powerful example where emotional truth was used in a case to show where a father’s simple love for his son led them to put the case on the line and not ask any questions of a witness. He also reveals how he used the 5 cores in a case which led to a record wrongful death verdict in Ohio and also why he believes lawyers don’t get large verdicts or are disappointed in verdicts. Hint, hint, it’s all based on these core truths. Cowen and Leizerman agree sometimes trial lawyers forget that jurors, in general, want to see good done and want to help people and these core truths can motivate jurors to see their way to the best outcome based on their own truths. Leizerman also talks through the “curse of knowledge” we, as trial lawyers, have when we’re in front of a jury and it sometimes goes over the jury’s heads to where they feel “submerged” or lost in all the details. Leizerman recalls coming to the conclusion after dissecting a case post-trial: we tend to bring the anger of a case to the courtroom without allowing the jury to experience it. Having a beginner’s mindset allows him to be the one who is grounded and the one who people look to for guidance vs. seeing him as the angry attorney who gets mad when things don’t go as planned. He finds that allowing the jury to experience the frustration for themselves when a defendant tells different stories that are contradictory instead of the lawyer pointing it out and calling them a liar, can become the lynchpin in a case. It comes down to letting the jury experience it for themselves vs. the jury trying to experience it through the upset lawyer. He makes note that when you get angry, it takes away the anger from the other party, even in many other significant relationships. In other words, if you get angry in the courtroom, often times it takes the anger away from the jury, the individuals you really want to experience the anger. He also points out if we were just analyzing the facts of the case,

 23 – Tom Crosley – TBIs: An invisible, yet very real injury | File Type: audio/mpeg | Duration: 1:13:11

In this episode of Trial Lawyer Nation, Michael Cowen sits down with accomplished trial lawyer and national speaker, Tom Crosley, who has been incredibly successful in trying cases involving Traumatic Brain Injuries (TBIs). Tom’s start in TBI-specialized cases began with a case involving a plumber who had a neck and shoulder injury with seemingly normal readings on his CT and MRI scans. The more he worked on the case, the more he found out through his client’s wife that his client just wasn’t the same as before the incident. It was when the defense lawyer was taking the plaintiff’s deposition that Tom realized his client likely had a TBI. All the things a plaintiff’s attorney cringes at in a depo were happening, from his client flying off the handle at the defense attorney, to forgetting his kid’s birthdays. Basically, all the things you think are going to be bad for your case. By the end of the deposition, Tom went from thinking this was a neck and shoulder injury case worth hundreds of thousands of dollars to thinking this could be a TBI case more than likely worth millions. This sent Tom off to learn as much as he possibly could about TBIs, all in the face of having normal scan results, which back then were seen more as a barrier to proving TBI cases. His research inevitably led him to finding a case study where war veterans of Iraq and Afghanistan were not displaying outward signs of TBIs, nor were their CT or MRI scans showing any abnormalities, but were found to have TBIs through additional testing. Not to give the whole story away, but Tom tracked down the lead researcher, his client was tested and found to have a mild TBI, the case was won with a verdict over 20X the initial offer given pre-trial, and Tom’s specialty for TBI cases had begun. Since then Tom attributes his ability to go from never having tried a TBI case to now being one of the country’s top TBI lawyers, to his penchant for reading medical literature and going to legal and medical conferences in order to gain knowledge of the cutting-edge science happening with TBIs. He also admits it’s not all brain science with TBI cases, but it also includes some very human nature elements sometimes overlooked. Things like before-and-after witnesses who can relay their own experiences with a plaintiff in a meaningful and impactful way, having nothing to gain from doing so. This puts the decision on the jury to conclude that this invisible injury (which many defense lawyers will proclaim isn’t real if it can’t be seen) either has a lot of people lying about it for the benefit of the plaintiff, or there is something very real about it given those who have first-hand accounts of seeing the plaintiff’s evolution from pre-injury to their current state. Michael shares his own firm’s experience about the timing of getting other witnesses involved in TBI cases and the hard lessons that experience has brought with it. Next, Michael explores how Tom transitioned from having success with just one TBI case to building up the number of TBI specific cases to become successful. To which Tom explains that the sequence of your evidence at trial makes a big difference on the outcome of the trial and shares a perfect example based on his experience of the order where he has found the most success over time. Tom discusses the patterns which tend to work for him, although his process is nothing close to being cookie-cutter, and shares “just like no two snowflakes are alike, no two brain injury cases are alike.” Michael and Tom both reference a shocking study which shows upwards of 56% of TBIs are misdiagnosed or go undiagnosed completely. Tom digs in and goes over some of the reasons WHY they get missed, starting with the most obvious in a traumatic medical situation where other orthopedic injuries tend to get the attention; i.e., someone goes to the ER with a bone sticking out of their leg and a concussion – the doctors focus on the bone first.

 22 – Paul Byrd – Understanding Conservative Jurors | File Type: audio/mpeg | Duration: 1:00:13

In this episode of Trial Lawyer Nation, Michael Cowen sits down with author, speaker, and seasoned trial lawyer, Paul Byrd from Arkansas for a deep dive into the minds of conservatives and what we can do to better communicate with them on juries. Kicking things right off, Michael and Paul agree that the likelihood of having a jury panel made up of only liberals is not only low, but likely not preferential either as Paul points out and sets the tone for the conversation. As a self-proclaimed “Republican trial lawyer,” Paul talks about the juxtaposition of not being felt trusted in trial lawyer arenas because he is a Republican, while also not feeling trusted in Republican arenas because he is a trial lawyer. This is something he never really understood in terms of why they didn’t seem to fit together as he feels strongly there are many values that cross over between the two and has led to his study of conservatism in the courtroom. Like many trial lawyers, Paul’s desire to reach jurors, and to reach voters who wanted to vote in the courtroom forum, has always been met with some resistance from those who are fiercely independent. Paul’s in-depth understanding of the interesting history of the Scotch/Irish in America, and how it paved the way for conservative thinking, helps to lay the foundation of working with conservatives in the courtroom. When asked how trial lawyers might learn from and relate to people who may have a more conservative value system than themselves, Paul suggests talking to experts in the field as well as using solid focus groups. Michael adds, from his own experience, that they can also take an introspective approach and work on themselves, learning to talk to people, listen nonjudgmentally,  and understand that conservatives are still good people by and large. In other words, take the time to listen to people, even if it’s not what you want to hear, in order to gain perspective. In this day and age, it is hard NOT to bring up the topic of social media, given the politically charged climate on social platforms, to which Paul brings up a great point that although they tell jurors not to look on social media to find lawyers involved, they commonly still do. He goes on to describe how people will typecast you as much as you typecast them with the posts they may find in your social accounts, so it is likely best to stay away from partisan posts in today’s world. Michael adds how he tends to avoid posting political things to his feed as some juror could potentially be immediately turned off by it regardless of which side of the issues he’s on. He also goes on to say if you can start the conversation with an open mind, you may be able to convince someone one way or the other, but if they are turned off before you begin the conversation (perhaps by seeing a politically-charged post), the likelihood of there being any movement is slim. Paul points out how some of the biggest verdicts have come from the most conservative juries and sometimes it simply becomes a matter of helping your jury understand what the rules are. He gives a great example regarding a case which involved horseplay around a pool where a man was pushed in, broke his neck, and drowned. His focus groups were leaning one way with the understanding that the man who was pushed in was the jokester; but once the rules were laid out by way of the pool manufacturer’s safety warnings and revealing the pusher was the homeowner, the case became much easier to solidify because the group understood what they were defining as the rules. Michael asks Paul if there are any buzz words or behaviors which can alienate a conservative jury. To which Paul expresses how it can actually work against you if you focus too much on trying to make jurors feel sorry for a client because it was a horrific injury. He goes on to say that jurors have become hardened over the years having been exposed to so much that empathy or sorrow will not carry ...

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