9-Step Method for Case Selection & Work Up from Michael Cowen

In Big Rig Justice: A Comprehensive Guide to Maximizing Value in Truck Accident Cases, trial lawyer Michael Cowen shares the 9-step method his firm uses to successfully select, and work up, cases. Below is an excerpt:

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Step One: Perform Initial Triage

The first question you must answer when any potential case comes into your firm is whether you want to invest the time and resources to fully evaluate the case. No matter how hard you work, there are a finite number of hours each week. Every hour you devote to a new case is an hour unavailable for your other cases and your personal life.

So ask yourself: “Is this a case I want to consider taking, given my knowledge and resources, as well as the other cases on my docket?”

If the answer is yes, then you must ask a second question: “Do I need to drop everything and start working on this case right away, or can it wait awhile?”

I took the term triage from military medicine. Triage is the system used to allocate finite resources to where they will do the most good. On the battlefield, medics try to save as many lives as possible by focusing their efforts on those who can most likely be saved. That means not treating others who are unlikely to survive. It also means immediately treating those who need emergency treatment and having those who will survive without immediate treatment wait. Triage involves making hard choices with limited information. It is a terrible calculus, but centuries of experience have taught doctors that more people die when they try to save everyone than when they allocate their limited resources to the patients most likely to be saved.

While the consequences to our clients are not as severe as those faced by wounded soldiers, we lawyers also have to make tough decisions with limited information. Every time we get a call from a potential client, we must decide whether to allocate some of our limited time to looking into the case. If we say yes to everything, we end up saying no to the opportunity to achieve greatness.

Most of us lawyers have too many cases. As a result, we work nights and weekends and still don’t get everything done. We end up asking for continuances because we aren’t quite ready when the case is called for trial. Worse, we risk settling for less than full value because we don’t have time to fully develop a case.

Having too many cases not only affects our clients, it also hurts us as lawyers. The stress caused by shouldering more than we can do takes a toll on us both physically and psychologically. Lawyers are 3.6 times more likely than nonlawyers to suffer from depression.1 The number of attorney suicides is increasing. Too many lawyers turn to drugs and alcohol to escape. While being a trial lawyer will always be stressful, we make the problem much worse when we take on more than we can handle.

Working up any trucking case takes time. You need to dedicate long periods to uninterrupted focus in order to apply this method and fully work up your case. Big cases require a ton of money to pay for experts, exhibits, and consultants. Before taking on a case, make sure you want to invest your time and resources in it.

Step Two: Gather All Available Information

If you decide you might want to take the case, the next step is to gather all available information. Evidence disappears quickly in trucking cases, so act quickly. Tire marks and debris on the roadway often disappear within days, especially on heavily traveled highways. Even documents that trucking companies are required to keep, such as logbooks and bills of lading, only have to be kept for a relatively short retention period.

You have two goals in step two:

  1. Gather enough information to begin analyzing the case and formulate your plan of attack.
  2. Preserve all potentially relevant evidence so that it will be available later in the case.

While you need to act quickly, you also must balance the amount of time and money you spend with the potential damages. For example, if you are hired on a wrongful death case, then it makes sense to hire experts, inspect the scene and vehicles, download electronic data, and hire investigators to interview all potential witnesses. But if your client has a sore back, you don’t know whether that injury will resolve in a few weeks or whether it will linger on for years. In that case, you can’t spend tens of thousands of dollars on experts and investigators when you do not know whether the damages will justify such an expense. The point of litigation is to put money in your client’s pocket. Spending more money than the damages justify makes it difficult to do so.

At a minimum, even in small damages cases you should get the police report, look at the scene, and photograph the vehicles. You should also begin gathering the available public information on the trucking company and the driver’s safety records. Chapter 6, “What to Do Right Away,” goes into greater detail on what information to gather and how to find it.

Step Three: Identify Immediate Causes

Using the information you gathered in step two, the next step is to identify as many potential immediate causes of the crash as possible. An immediate cause is an act, omission, or condition that directly caused the crash. For example, in a rear-end collision, potential immediate causes include failure to maintain a proper following distance, failure to apply brakes, and failure to pay attention.

You need to identify as many potential immediate causes as possible, even if you do not believe that all of them will end up being applicable. You want to be sure that you are prepared to address any excuse the defense may come up with, along with something jurors might come up with during deliberations.

It helps to talk to others when coming up with potential immediate causes. If you practice law with other lawyers, brainstorm with them. Talk to friends, spouses, even your children. If you keep an open mind, you will often get great ideas from other people. If your case is big enough, you could even do a focus group to help come up with immediate and root causes.

Once you get your list of potential immediate causes, divide it into two categories. The first category is the winners—that is, those causes that, if proven, would result in a verdict in your favor. The second category is the losers—those causes that would result in an unfavorable verdict. Losers include causes that were unavoidable, the fault of your client, or the fault of someone other than your target defendant.

Step Four: Conduct A Root Cause Analysis

Once you identify the potential immediate causes, you need to figure out what to do with them.

1. Eliminate Potential Causes

First, go through the list and see if there are any potential immediate causes that you can either eliminate or find extremely unlikely based on the information you have gathered thus far. For example, if the driver passed out due to a medical condition, that information would probably appear on the police report. You might want to keep these unlikely potential causes in mind just in case someone raises them later, but focus your efforts on those that are reasonably likely to be applicable in the case.

2. Decide What You Can Disprove

For the losers, formulate a plan on how to disprove each potential immediate cause. For example, to eliminate an argument that your client was driving too fast, you could have an accident reconstructionist download the vehicle’s crash data recorder. If you can show that your client was driving under the speed limit, you can disprove this immediate cause.

3. Figure out Whether Your Client Is Partially at Fault

Sometimes you cannot disprove a potential loser immediate cause. In fact, sometimes the loser immediate cause is undeniably one of the reasons for your client’s harm. For example, your client may have had some fault in causing the crash. In that situation, ask yourself, “Can I live with it?” Specifically, “Given the law of my jurisdiction, combined with my personal risk tolerance, should I handle the case, when one of the causes of the crash does not put liability on the defendant?” Joe Fried, one of the nation’s top trucking lawyers, says it another way: “How can the defense be right and we still win?”

4. Dig into Winner Causes

If the potential loser immediate causes do not change your mind about accepting the case, the next step is to dig deep into all of the potential winner immediate causes. To get full justice, it is not enough to merely prove that a truck driver was negligent in causing a crash. You need to find the systemic failures at the trucking company that led to this crash and that, if uncorrected, will lead to other crashes in the future.

The best tool for establishing corporate liability is the root cause analysis. A root cause is “the most basic cause (or causes) that can reasonably be identified that management has control to fix and, when fixed, will prevent (or significantly reduce the likelihood of) the problem’s recurrence.”2 I use the five whys method developed by Sakichi Toyoda to get to the root cause.3 That is, starting with the potential immediate cause, I keep asking why until I get to a root cause. For example, in a rear-end collision, the five whys process could go as follows:

  • Why did the tractor rear-end the car?
    • Because the truck driver did not apply his brakes in time to avoid the collision.
  • Why didn’t the truck driver apply his brakes on time?
    • Because he was following too closely.
  • Why didn’t the truck driver know how to determine the proper following distance?
    • Because the motor carrier put him on the road without making sure he knew it.
  • Why didn’t the motor carrier make sure the driver knew how to determine the following distance?
    • Because it chose not to spend the time and money needed to train the driver.

You need to do a root cause analysis for each reasonably likely potential winner immediate cause.

Step Five: Draft Jury Instructions

At the end of each trial, the jury answers the questions set out in the jury charge. Everything you do at trial should arm the jurors with the arguments and evidence they need to answer those questions in a way that will benefit your client. Drafting a jury charge before starting discovery will focus your efforts on getting the evidence you need to win your case. Even if you feel like you have the jury instructions memorized, writing (or typing) them out and keeping them as part of your working file is an important exercise. You may refer back to the charge periodically to prepare for depositions, to prepare the scope of work for your experts, and to do legal briefing.

Drafting the jury charge early also helps prepare you to overcome a summary judgment motion. In many jurisdictions, you will need to establish a prima facie gross negligence claim to introduce evidence of corporate negligence. When you look at what you need to prove gross negligence, and attack your case with those elements in mind, you are far more likely to develop the evidence you need to survive summary judgment. You may also need to do some legal research to determine what evidence you will need to support a verdict.

While this book focuses on liability, it is equally important to look at the damages portion of the jury charge. Determine which elements you will want to seek in your case and formulate a plan on how to develop the evidence of each element of damages. What can you recover? What evidence can you find to support each element?

Step Six: Find Rules and Anchors

A rule is what a defendant should or should not do. As set out in Rick Friedman and Patrick Malone’s Rules of the Road, clear rules help juries find negligence. An anchor is a source for the rule. Your rules and anchors will guide the jurors to answer the questions in the jury charge in your client’s favor.

The purpose of anchors is to anchor, or ground, your rules in government regulations or laws, literature, and industry standards. We should never expect a jury to simply believe our assertions of the rules.

Lawyers have very little credibility in the courtroom, and anchors are meant to create the building blocks that make the rules obvious. When possible, we should never expect a jury to simply believe our experts’ assertions of the rules either. Expert witnesses are paid to testify, which diminishes their credibility. Ideally, every expert opinion should be anchored by regulations, government publications, or industry standards. Additionally, every expert opinion should support your rules and show that the target defendant broke them.

The great thing about trucking is that there are so many sources for anchors and rules. Once you get a feel for the key publications, you will be able to easily find rules and anchors. These are the most commonly used sources of anchors:

  • Federal Motor Carrier Safety Regulations.
  • State traffic laws.
  • State commercial driver license manuals.
  • Commercial Vehicle Preventable Accident Manual.
  • Motor Carrier’s Guide to Improving Highway Safety.
  • Textbooks from truck driving schools, such as Alice Adams’s Delmar’s Tractor-Trailer Truck Driver Training (2013) or J. J. Keller’s Tractor-Trailer Driver Training Manual.
  • Truck driver training videos and materials.
  • The defendant motor carrier’s policies.
  • Policies from other motor carriers.
  • Materials insurance companies provide to motor carriers.

Look at multiple sources before deciding on which anchor to use. For example, in a case where a crash occurred on an icy road, many trucking lawyers immediately jump to Federal Motor Carrier Safety Regulation 392.14, which provides:

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated…

But 392.14 is not an ideal anchor in many icy road cases because it is too ambiguous. It says that speed “shall be reduced,” but does not say how much a driver should slow down. Sufficiently, it says that a driver should discontinue operations when “conditions become sufficiently dangerous,” but it does not spell out when conditions become dangerous enough that the driver should get off the road.

In contrast, the Model Commercial Driver License Manual, another government publication, offers a much better anchor and rule. It provides, “If the surface is icy, reduce speed to a crawl and stop driving as soon as you can safely do so.”4 In a case where a driver was driving forty-five miles per hour on an icy road with a sixty-five-mile-per-hour speed limit, the driver could argue that he complied with the rule set out in 392.14 because he did reduce his speed. But he would have to admit he violated the rule set out in the Model Commercial Driver License Manual because he did not reduce speed to a crawl and get off the road as soon as he could safely do so.

Similarly, look carefully at the language in each anchor to make sure that the anchor really supports your rule and that it does not contain language that can be used against you. For example, the Model Commercial Driver License Manual warns truck drivers that they need to watch out for other drivers who may be hazards: “In order to protect yourself and others, you must know when other drivers may do something hazardous.”5 While this may be true, if you are representing the other driver, you may not want to use a rule that assumes your client is doing something hazardous. The wording of this rule puts fault on your client. Chapter 5, “Rules and Anchors,” explores rules and anchors in more detail.

Step Seven: Formulate a Discovery Plan

Using what you have learned in the first six steps, you can develop a discovery plan to strategically get the evidence you need to prove your case. Think of what evidence you need and the best way to get it. Ask yourself the following:

  • What do I need to get the answers I want on the jury charge?
  • What do I need to prove my root cause analysis?
  • What do I need to do to rule out loser immediate causes?
  • Is there a way to get the defendants (or their experts) to endorse my anchors?
  • Who do I need to depose to get the evidence I need?

Then formulate the interrogatories, requests for production, and deposition questions that will get you the evidence you need to win your case.6 If you have a big case, consider conducting a concept focus group before formulating your discovery plan. In a concept focus group, you present facts about the crash to a focus group and ask them what they think and what they want to know. Seeing the case through the eyes of a potential juror will help you find what you need to prove in your case.

Do not just use a set of discovery from another case. Get what you need to prove your case, not what someone else needed to prove their case. If you use a form, you will likely waste time on issues irrelevant to your case and, at the same time, will miss things you needed. That is not to say that forms have no value. But don’t start with the form. Instead, start by formulating the requests and questions you think you need, and then review forms from other cases to make sure you are not leaving anything out.

Step Eight: Continually Reevaluate

“No plan survives contact with the enemy,”7 or as Mike Tyson more eloquently stated, “Everybody has a plan until they get punched in the mouth.”8 While it is important to start with a plan for developing your case, it is equally important to remember that the initial analysis is merely a working hypothesis. That is, we start with the best plan based on the limited information we have and with our best guesses as to what we will learn in discovery. As we progress with the case, we often learn facts that are inconsistent with our initial analysis. Therefore, it is important to regularly step back and reevaluate the case based on what we have uncovered.

For example, our initial root cause analysis may have theorized that a crash occurred because a driver was poorly trained. If the motor carrier’s discovery responses show that the driver actually had extensive training, then we need to go back and reevaluate the case. Was the training really adequate? If so, can we find a different root cause for the crash?

Similarly, after each deposition, we should revisit our discovery plan. Ask yourself:

  • Do I need to send additional requests for production?
  • Are there new people I need to depose?
  • Does the evidence support my tentative root cause analysis and winner immediate cause?
  • Do I need to go back to the drawing board?

Step Nine: Test the Case

Before deciding whether to take a case to trial, find out what potential jurors are likely to think about the case. We lawyers have a tendency to look at our cases through rose-colored glasses. That is, we are overly optimistic about the positive aspects of the case and often look past the potential land mines. Just because you passionately believe in your case does not mean that your jurors will see it the same way.

One of the best ways to test a case is to conduct focus groups. Present a balanced presentation of both sides of the case to a focus group that is demographically similar to your jury pool and see how they view the case. There are professionals who conduct focus groups, and there are reasons to consider hiring such a consultant to do some of your focus groups. These consultants are trained in how to get focus group members to open up, and since they are not emotionally attached to the case, they are more likely to give a balanced presentation. But the downside of using a professional is that they are expensive. You should make sure that the value of your case justifies the expense.

You can also do focus groups yourself. While you may not be as good as the professionals, some information is better than no information. At my firm, even in the big cases where we hire an expensive consultant to do a couple of focus groups, we still do additional focus groups ourselves so that we can get as much information as possible. Trial Guides has a great DVD that shows you how to do your own focus groups.9 It also includes the forms you need.

You do not necessarily need to give up when a focus group jury does not like your case. We have had cases where we had to refine our messaging through numerous focus groups until we discovered a winning trial story. Use what you learn in each case to refine your arguments and to get the additional evidence you need to persuade jurors to answer the jury charge your way.

Conclusion

This has laid out the nine-step method Malorie Peacock, Sonia Rodriguez, and I created to develop cases. Here again are the nine steps:

  1. Perform Initial triage.
  2. Gather all available information.
  3. Identify and analyze potential immediate causes.
  4. Conduct a root cause analysis.
  5. Draft jury instructions.
  6. Find rules and anchors.
  7. Formulate a discovery plan.
  8. Continually reevaluate the case.
  9. Test the case.

The method is a lot of work. It requires you to invest time and effort into each case. But it works. My firm’s case values have soared since we started using the method. It will work for you too.

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Discover a detailed breakdown of Cowen’s method, as well as case examples, key insights, and practical strategies that Cowen has used to win case after case in Big Rig Justice: A Comprehensive Guide to Maximizing Value in Truck Accident Cases.

 

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1. William W. Eaton et al., “Occupations and the Prevalence of Major Depressive Disorder,” Journal of Occupational and Environmental Medicine 32, no. 11 (November 1990): 1079–87.

2. Mark Paradies, “Definition of a Root Cause,” TapRooT Root Cause Analysis (website), July 19, 2019.

3. Taiichi Ohno, Toyota Production System: Beyond Large-Scale Production (New York, NY: Productivity Press, 1988). Sakichi Toyoda, the founder of the company that is now Toyota Motor Company, developed the five whys method to improve the manufacturing process at this company.

4. Model Commercial Driver License Manual, (July 2010), 2-9 to 2-10.

5. Model Commercial Driver License Manual, 2-19.

6. Mark Kosieradzki, 30(b)(6): Deposing Corporations, Organizations & the Government, 2nd ed. (Portland, OR: Trial Guides, 2020). A useful reference for planning and conducting corporate depositions.

7. Correlli Barnett, Swordbearers: Studies in Supreme Command in the First World War (1963), at 35 (paraphrasing Helmut von Moltke the Elder).

8. Mike Berardino, "Mike Tyson Explains One of his Most Famous Quotes," South Florida Sun-Sentinel (Nov. 9, 2012).

9. David Ball, Debra Miller, & Artemis Malekpour. Focus Groups: How to Do Your Own Jury Research (Portland, OR: Trial Guides, 2008), DVD.