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$3.42 million Noneconomic Damages Verdict in Hidalgo County, Texas

In Hidalgo County, Texas, attorneys Michael Cowen and Malorie Peacock of Cowen Rodriguez and Peacock obtained a just multimillion-dollar verdict for the widow of a man who died during a trench collapse.

The Case:

Trenches tend to cave in, which is why there are safety regulations to prevent this. If a trench is over five feet deep, certain safety equipment is required. The defendant did not use the required equipment. The trench collapsed and the plaintiff’s husband died. 

The plaintiff’s husband was undocumented and that fact posed an obstacle for the plaintiff’s case in trial. Also the plaintiff and her husband had only been married for nine days and there were not a lot of economic losses because he had not been a big wage earner. The plaintiff’s counsel could not get testimony from anyone who was there during the collapse. The two witnesses would not show up for deposition. One thing to note: Texas has a rule that employers don't have to carry workers’ comp. But if the employer doesn't, an employee can sue them. 

The Trial:

Cowen and Peacock used techniques and strategies from several Trial Guides books in order to help secure justice for their client in this case. 

First they used Rules of the Road. Cowen and Peacock needed a simple rule that was an on/off switch for the jury. There is an OSHA regulation that gave the plaintiff’s counsel the rules they needed and they carefully considered how to simplify the regulation into plain English. They broke the case down into a simple rule: if a trench is five feet deep or larger you must use one of the three S’s: sloping, shoring, or shielding. If you don't comply, then you are gambling with the lives of the workers.

During voir dire, Cowen and Peacock were concerned about addressing the fact that their client’s husband was undocumented. They were also worried they could end up triggering the political division we face in our country and they would face a divided panel. To mitigate this issue, they used a concept in From Hostage to Hero, and listed their fears and came up with ideal beliefs panel members would need in order to be good jurors. Cowen and Peacock started voir dire by talking about rules at work. They had a great discussion with the jury about how almost everyone can relate to using rules at work and everyone could understand why those rules are extremely important. They found many jury members from all different backgrounds who agreed. 

They then asked about someone being an undocumented immigrant and whether that changed anyone’s opinion about the importance of rules at work. Everyone thought that rules are rules and everyone deserves protection. Some people still self identified they could not be fair, but the technique kept things positive and kept the panel together as a team. 

Cowen and Peacock also used another lesson in From Hostage to Hero: focusing on what you want instead of what you don’t. They focused on beliefs an ideal juror needed to have and used that to focus their voir dire questions on what they needed to ask to find that out. Cowen and Peacock also used techniques in From Hostage to Hero regarding body language to help the jury see them as mentors, and to get panel members to talk to one another and bring the jury panel together.

Cowen and Peacock used the Ball opening from David Ball on Damages. They started with the rules and why we have the rule and then told the story of the case from the defendant’s point of view. 

In closing, Cowen and Peacock used a phrase from Don’t Eat the Bruises: “doubt is not an out.” The defense tried to create confusion and doubt with the jury. And Cowen and Peacock used that phrase to show that just because the defense was trying to confuse the jurors, it did not mean the defense was off the hook. They also followed ideas from David Ball on Damages in closing and worked on arming positive jurors with what to say in the face of defense arguments in the jury room. They gave the jurors on their side the necessary tools and arguments to go into deliberation and fight for their client’s case. 

Cowen and Peacock structured their whole case using Twelve Heroes, One Voice. They placed themselves as the mentors and the jurors as the heroes. And they also talked about how all humans have value. 

This trial really had a huge healing effect on the widow. She had been experiencing serious depression from the fact that the man who had loved her and changed her life had been killed, and she felt like no one cared or listened. The verdict gave her closure. Hearing people recognize the value of her husband and the value of her loss and taking the time out of their lives to fight for her and her husband was huge for her healing process. 

Cowen and Peacock obtained a noneconomic damages verdict of $3.42 million for their client. 

Rules of the Road

By Rick Friedman & Patrick Malone

 

From Hostage to Hero

By Sari de la Motte

 

Twelve Heroes, One Voice

By Carl Bettinger

 

David Ball on Damages 3

By David Ball

 

Don't Eat the Bruises

By Keith Mitnik

 

 

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