The Trial Lawyer Nation Podcast

By Michael Cowen

A Cycle of Learning and Sharing

I started the Trial Lawyer Nation podcast back in January 2018. Since then, I have had the pleasure of interviewing some of the best minds in the legal world, including David Ball, Nick Rowley, and Keith Mitnik. It has been a great opportunity for growth on my end, and its reach has extended far beyond what I expected.

When the COVID-19 pandemic hit in March, it became clear I had to shift my focus. This pandemic has affected almost everything we do as lawyers, and I felt an immediate need to use my podcast as a resource. Our episodes have covered topics our legal industry is discussing regularly; and reaching six months of social distancing guidelines, the conversation has now turned to the virtual, partially virtual, or socially distanced with PPE jury trial (which my firm has agreed to do in two cases) and research into the changes in juror mindset because of this.

Working Remote and Staying Afloat

Right after the initial stay-at-home orders for San Antonio hit on March 23rd, I recorded an episode with fellow trial lawyer Jacob Leibowitz, titled “COVID-19: Working Remote & Staying Afloat.” The episode focused on adapting a law firm to function in an ever-changing crisis situation. We talked about technology, remote work, cash flow, and employee morale—all aspects that we had to figure out quickly.

Looking back on that episode now, we really had no idea what the extent of this pandemic would be, but we knew we had to find a way to keep moving our cases—and that’s what we did. Jacob was kind enough to create guides for how to use Zoom for depositions and mediations. My firm put together video tutorials for clients and employees to learn the technology, and we shared these videos with law firms across Texas. Jacob and I discussed the pros and cons of Zoom, and how to ease the concerns of mediators and defense counsel who originally resisted the idea of remote mediations, so that cases would keep progressing.

Shifting our firm of thirty employees to a completely remote workforce in a matter of days was no easy task. We had to purchase company laptops for employees who did not already have a laptop, while mitigating the challenges of server capacity and cloud migration. We discussed the hurdles of working from home and how we had been adapting at that point. Jacob’s message still holds true, “You need to go full force into this because you’re going to end up learning a whole lot, and you need to.” In March, no one knew how long this would last, but lawyers needed to adjust rapidly to protect their clients’ interests and sustain cash flow.

My initial method for maintaining employee morale was relatively simple—overcommunicate. Before the pandemic hit, we could pop into each other’s offices or bounce ideas off each other in the hallway. Overnight, these options were eliminated. To combat this, we started holding daily, weekly, and monthly Zoom meetings with our teams. While we are all suffering from serious Zoom fatigue now, these meetings continue to be an integral part of our remote work strategy and have helped us maintain both our professional and social bonds.

Jacob and I ended this episode by discussing our biggest “takeaways” from COVID-19. Though it is a bit nostalgic to look back on these early stages of the pandemic, our primary points remain true. This is an opportunity to gain skills to better your practice (true), spend more time with your family (almost TOO true), and push your abilities as a lawyer (even more true than we realized). But most importantly, we all needed to step up and be leaders.

Technology, Road Blocks, and Creative Solutions

After practicing with the technology and working remotely for about a month, I recorded a podcast episode with my law partner Sonia Rodriguez. We covered many of the same topics I had discussed with Jacob, but from a lens of newfound experience—one of those experiences being a frustrating amount of delay. Sonia explained that, prior to depositions, she likes to set out a clear, transparent proposal for the technology to be used. This worked well when people were acting in good faith. With those not acting in good faith and intentionally stalling proceedings, however, Sonia encouraged attorneys to file a Motion to Compel Deposition.

We then discussed how we overcame the common issue of our clients not having a laptop or a stable internet connection by sending them a tablet with a wireless hotspot to use for depositions, hearings, etc. There was also a heavy emphasis on initial technology training. But there were some clients with minimal technology savvy who simply refused to participate in remote proceedings.

We also noted a rapid increase in people’s technological literacy. The world had already changed in a major way just one month into the initial shutdown, which led me to expand upon a much larger point: “You only have a given amount of energy to spend in the day.” While it is easy to get caught up in things outside of your control, it is crucial to not allow these things to suck up your energy. Instead, focus your energy on what YOU CAN control. Sonia added that, as trial lawyers, we are wired to be creative and tackle the unexpected in our cases and in the courtroom. She compared a Zoom screen share malfunction to an Elmo projector going out on you in trial—you pick up, and you move on.

After sharing our early predictions on the effect of the pandemic on jury attitudes, we concluded the episode by re-emphasizing our priority, which has remained true throughout these past months—safety. There is no amount of money that is worth risking someone’s health.

Discovering Our Why

With all this fresh on my mind, I went into the month of May with a renewed sense of purpose and motivation. What could I focus on? What was still within my control? What could I do to better my firm right now? I found the answer in the book The Advantage: Why Organizational Health Trumps Everything Else in Business by Patrick Lencioni. One of his recommendations is to have a two-day management retreat where you take a “deep dive” into your firm’s core values, focus, and goals. I was sold. We booked a hotel conference room big enough for 50, so my management team of 5 could socially distance ourselves around the room.

The results of this retreat were discussed in a podcast episode with my other law partner, Malorie Peacock. We started with a deceptively simple question: Why does our law firm exist? It sounds like a simple question, but you would be surprised at how complex the question really is when you try to answer it. What is the purpose of our being here, together, at this firm? Why don’t we all go get jobs at another law firm?

Next, we defined our purpose and core values. With those in mind, we endeavored to decide on one actionable, attainable goal for our firm to focus on for the coming year. Why just one? If you have read The One Thing by Gary W. Keller, you should know. In the past, we have had meetings where we tried to come up with a list of goals we wanted to accomplish. But the problem with a list of goals is that it is daunting and not realistically attainable. If your goal is to do everything, then you have no goals.

Once we decided on a single goal that the entire firm could focus on, we implemented a strategy to achieve it. The firm now conducts mandatory weekly training for all lawyers and paralegals regarding our overarching goal.

Jury Trial Via Zoom

By early May, the question of whether jury trials were the future of litigation was looming large. At that point, Zoom jury trials had not been attempted yet, and I had serious questions about whether they were feasible. Between the lack of nonverbal communication, the multitude of distractions for jurors in their homes, and the loss of group dynamics in the jury, I was already concerned. But my biggest fear was the inability to obtain a representative jury pool by excluding citizens without adequate internet or access to childcare. Malorie added more concerns, mainly the lack of mobility when presenting a case virtually. You can’t have witnesses act things out, do demonstrations, or have multiple ways of showing exhibits.

We concluded that if this continues for years, we will eventually have to adapt. I even offered to try one of my podcast fans’ cases virtually with him to get some practice. At the time, I didn’t realize our firm would offer to do this for more than one of our cases.

Cue Matthew Pearson, my guest on the following episode. Matthew was the plaintiff’s lawyer in the highly publicized first Zoom jury trial in the country. We discussed the trial in detail, starting with how his case was selected. His case involved a commercial building in Collin County, Texas, that was hit by a hailstorm. The insurance company did not want to pay out the claim. As part of Collin County’s ADR process, the parties must hold a summary jury trial before they are allowed a full trial (the goal being to settle in mediation after the summary trial). Matthew’s summary jury trial was originally set for July, but he was “asked” (or as he says, “volun-told”) to move it forward to May 18th and conduct it virtually.

While a summary jury trial is non-binding, Matthew was still nervous. This was all new, not just for him but for everybody. And once the court noticed the national publicity the trial was receiving, it changed some of the normal procedures. Typically, in a summary jury trial, there is no voir dire. The mediator simply selects the jury and only dismisses jurors “on the fringe” of either side. In this case, the court decided to give each side fifteen minutes to conduct voir dire (on the Friday evening before the Monday trial). Out of curiosity, I asked Matthew how a Zoom jury would do simple things like raise their hands when asked a group question, which Matthew described as “The Brady Bunch on steroids.”

Digging in further, I wanted to know if Matthew presented his case differently than he would for an in-person trial. He chose to go about it as much like a regular trial as possible, using PowerPoint for the opening and using Trial Director software to talk the client through evidence. He instructed his expert to use PowerPoint to present key documents, and the expert used a digital pen to circle key points and blew up pictures as he presented.

I wanted to know more about how the group dynamic issue played out. Jurors could not eat lunch together, and at the end of the day, they just turned off their computers without interacting with the rest of the jury. Strong group dynamics or not, in Matthew’s case the jury deliberated for thirty minutes and reached a unanimous verdict.

Now for the big question: Would Matthew do a Zoom trial if the result were binding? He wasn’t sure he would. This experience went smoothly, but it was only a one-day experiment. If this had been a fullblown trial, it would have gone on for much longer, and he was not confident that the results could be replicated for such a large endeavor. Could a jury realistically go through that much evidence and make a decision based on the evidence virtually? We discussed possible solutions, but in the end, neither of us felt confident about this.

COVID-19’s Impact on Juror Attitudes

How do you even start to become confident with something so new? Well, you research it. A month after Matthew Pearson’s experimental trial, my guest was attorney, law professor, and founder of Empirical Jury, John Campbell. He uses big data methods to research individual cases for lawyers and has recently been using his methods to research the effects of COVID-19 on jury attitudes.

John describes his research process as working like a “gig economy.” He’ll share an ad along the lines of, “be a mock juror and get paid to do it,” and is able to recruit hundreds of workers in one day. I asked him how representative the jury pool could be, figuring it would be mostly underemployed twenty-somethings. He explained that many people take online surveys for fun, like playing Sudoku, so his group is much more diverse than you would think. His participants range between eighteen to eighty years old, very conservative to very liberal, and some earn up to $150,000 a year.

John’s research on COVID-19’s effect on juror attitudes included a survey of 1,500 jurors containing questions about COVID-19 and trial options. He listed a number of shocking statistics and concluded that to seat a jury today, one would have to account for a loss of 50% of jurors before asking a single voir dire question unrelated to COVID-19. Knowing this information, another vital question remained—do the remaining 50% of jurors skew towards the defense or the plaintiff? John explained that the answer is more complicated than most people think, but he went on to share some in-depth findings which have huge implications on the future of jury trials.

This was all very interesting, but one of my biggest concerns remained—could a jury award a big damage verdict without attending the trial in person? Based on his success in predicting case results using his research methods, John thinks a jury could. He explained that if evidence (such as day-in-the-life videos) is impactful in the courtroom, it remains impactful on a remote platform. He analogized this to watching a movie and crying.

Adapting to the New Jury Trial

So, how do you change a presentation to make it engaging for a Zoom jury trial? I have spent years honing my presentation skills for the courtroom, but presenting a case virtually is a whole different beast. How do you keep the jury engaged? Do you think of it more like a television show production? And how do you keep your energy up while sitting in front of a camera for that long? Well, on August 13th I had some great practice.

Every year, I host a trucking seminar called Cowen’s Big Rig Boot Camp, and it is truly one of my favorite days of the year. When Governor Abbott prohibited groups larger than ten, we knew we had to adapt the event to a virtual format.

As the only speaker in a full-day webinar, I had to change my presentation style to keep the event engaging for the virtual audience. My marketing department had to visually and technically prepare our webinar as if it were a live news broadcast. After the webinar, I sat down with my partner Malorie Peacock again to discuss the lessons we learned from hosting this virtual seminar and how those lessons tie into a virtual jury trial.

First, we decided to hire a professional AV crew with multiple cameras, which made a big difference. For one, it allowed me to stand up and use hand gestures naturally. Malorie and I agreed we’d like to set up an area so we can stand up for virtual hearings.

By hiring an AV crew to film the seminar I was able to use multiple camera angles and switch between them seamlessly. I first heard about this concept from Mark Lanier, who uses a three-camera setup for his depositions. When showing deposition footage in trial, he will only show the same camera angle for seven seconds. This is done in the news media to keep the audience engaged and can likewise be used to produce a dynamic virtual experience that holds the jurors’ attention.

Malorie asked how I maintained my energy for such a long presentation, without a room filled with lawyers, while speaking into a camera. I’ve been working on energy management for years and have learned the key is to have a range of highs and lows. If you are “high” all the time, you come off frantic and stress out your audience. I also purposefully chose a variety of slides to assist with this—some had large quotes where I could be low energy, while others had just a phrase or two to remind the audience of what I was speaking on. These needed to be higher energy to remain engaging.

These principles apply equally in the courtroom. Malorie and I agree that, most of the time, a simpler graphic is better than a complicated, expensive one. Basically, if you have to explain the graphic, you are losing the audience.

While these past months have undoubtedly been some of the most testing of our careers, we have all had to adapt and learn new methods to keep our cases moving and our firms running. I’ve been fortunate to use my Trial Lawyer Nation podcast to learn, grow, and share knowledge along the way. And with our firm agreeing to do trials in person with social distancing and PPE in October and November in two separate cases, every bit of information helps us sharpen our sword and prepare.

My upcoming guests include Chris Madeksho, who led the first COVID-era inperson civil jury trial in Washington state and was awarded $13,966,000.00 for his client. The other is Brendan Lupetin, who led the first inperson civil jury trial in the state of Pennsylvania and was awarded $10,083,000.00 for his client. Both of these trial lawyers have paved the way for justice to continue. Providing a platform for them to share their stories has been an honor, in addition to helping me organize two cases for trial in the coming weeks.

Nobody has all the answers, but if we can come together, support each other, and share what we know, we will come out of this as better lawyers.

Michael Cowen is the founding partner of Cowen | Rodriguez | Peacock in San Antonio, Texas, and is a Board Certified attorney in personal injury trial and truck accident law. He created the podcast Trial Lawyer Nation to share industry knowledge with trial lawyers.