Michael Cowen:
This is Michael Cowen and welcome to Trial Lawyer Nation.
Voiceover:
You are the leader in the courtroom and you want the jury to be looking to you for the answers.
When you figure out your theory never deviate. You want the facts to be consistent, complete, incredible.
The defense has no problem running out the clock. Delay is the friend of the defense.
It's tough to grow firm by trying to hold on and micromanage.
You've got to front load a simple structure for jurors to be able to hold onto.
What types of creative things can we do as lawyers even though we don't have a trial setting?
Michael Cowen:
Whatever you've got to do to make it real, you've got to do to make it real. But the person who needs convincing is you.
Voiceover:
Welcome to the award-winning podcast, Trial Lawyer Nation, your source to win bigger verdicts, get more cases, and manage your law firm. And now here's your host, noteworthy author, sought after speaker and renowned trial lawyer, Michael Cowen.
Michael Cowen:
Welcome to today's Trial Lawyer Nation, brought to you by LawPods. This is Michael Cowen. Today I am here with a great lawyer out of Texas, Maxey Scherr. How are you doing today, Maxey?
Maxey Scherr:
I'm doing great. Thanks for having me. How are you?
Michael Cowen:
I'm wonderful actually. This is an incredible day. I'm still basking in the last verdict we got, I finally got a physical copy of my book, Big Rig Justice, today in my hands, which after five and a half years just feels so awesome. I almost was crying. It was so cool. So I'm just on top of the world today, and I'm happy to be talking to you.
Maxey Scherr:
Well, I'm happy to be talking to you and I'm going to get a copy of your book today. I'm very excited to read about what you know.
Michael Cowen:
Awesome, and before we just jump in, I always have to remember to thank LawPods. LawPods sponsors this podcast and they're here, we're here live at the Association of Truck Accident Attorneys Symposium in Atlanta, Georgia. And Rob from LawPods is here. He makes life so easy for us. He's doing the lighting, the recording, he does the mixing, markets it for us. If you have a podcast and you want to have a podcast, you really ought to think about talking to LawPods, because they make your life easy.
So let's jump in and let me talk a little bit about you now. So Maxey, tell us a little bit about yourself.
Maxey Scherr:
Okay, so I'm from El Paso, Texas. I was born and raised there. I went to college at UMass Boston and when I was in college I had my son out there. I was a single mom and had him pretty young, and so I did undergrad at UMass Boston. I went to grad school for neuroscience at Harvard, and then went back to Texas and got a good scholarship at Texas Tech. So my son was three years old at the time when I moved back to Texas. And so I went back and he was an honorary law school student himself and finished law school in 2008. Went back to El Paso. I was practicing at my dad's firm in El Paso, Scherr Legate for 13, 14 years. And in 2022 I started my own firm. And so I've had my own firm for just about, I guess a year and three quarters. I'm coming on two years now.
Michael Cowen:
That's awesome. You've already had some pretty impressive success. I know you had a really nice verdict in El Paso against Swift on a trucking case, and you've had some other cases that we're going to talk about. Before we get into actual case results though, I want to talk a little bit about over the years you've developed yourself where you can get these big verdicts, you can handle these big cases. What have you done to develop yourself as an attorney so you could develop the skills to do what you do?
Maxey Scherr:
Yeah, that's a good question. And I think as an attorney it's called practicing law for a reason because we're always practicing, we're always learning. And so I go to a lot of these types of conferences like we're at now. We're here live, like you said, at the ATA symposium. I've been coming to these since ATA began. I've been at the first one and I've been at every single one since.
Michael Cowen:
Oh, wow.
Maxey Scherr:
I've been involved with AHA. I am an avid learner. I'm always trying to learn and read. I can't wait to read your book. And I actually am one of the first few women in the country that got board certified in trucking. And so I'm licensed in Texas and Illinois and New Mexico, but have been involved in quite a few trucking cases over my career starting at the first firm I was with and really developed kind of a keen awareness of the difference between trucking cases and car accident cases. And I wanted to learn more.
And so kept studying and studying and learning that there was board certification available, and so I took that. And I think by the time that I took it and got my certification, I was the fourth or fifth woman in the country that was board certified. And now there are still just a handful of us, but the number's growing every year and I love doing this type of work and working with people who inspire me like you, and it's really cool to be in this field. And so I like learning about it all the time.
Michael Cowen:
What's it like to balance being a mom and spending the time to develop yourself as a lawyer? That's got to be...
Maxey Scherr:
Something. Yeah, it's something I'll tell you right now, I don't have so many challenges, because my kid is a third year student at Baylor. But when I first started, I can give zero advice about me having good work-life balance. I did not. And so when I finished law school and went and started as an attorney, he literally kind of had to succumb to whatever schedule I was dealt with. And so what we would end up doing is I'd wake up in the morning super early, I'd do the carpool ride for all the students kind of to school. And so I'd drop him off at school at 7:00 or 7:15 in the morning. I'd go into the office and then the other parents would do the afternoon kind of carpool, but they would take him to my office. He'd hang out at my office after I was done, and we would be there every single night until 10:00 or 10:30. I would order dinner. I would have dinner at the office. I had a couch in my office, and my poor kid really didn't have lots of home cooking. He didn't have tons of life balance for us being at home. He kind of grew up in my law firm.
Michael Cowen:
Wow. Well, at least you were together.
Maxey Scherr:
Yeah, we were together and I'm super close with him and we bonded all the time, and he did his homework in my office, and he's an awesome, awesome kid. That's probably the thing. Definitely the thing I'm most proud of in life is my kid, but he didn't really get lots of home time. So I'm not a good spokesperson for how to have work-life balance. I think I failed at that.
Michael Cowen:
Well, you're still doing all right. It's always a challenge. I don't know. I think having him there instead of leaving him with someone else is a way to do it. We all have to find the solution that works for us.
Maxey Scherr:
Yeah, yeah, definitely. And now that I have my own practice, we're still busy. It's still busy all the time, but I try to make parent weekend at Baylor. I try to make... He's in a fraternity, so when they have mom's weekend, I get out there.e and I try to go to every single thing that I can now. And I did that while he was growing up too. And I think that's important. And seriously, like you said, I am very grateful for the time we spent, although it was in an office rather than in a home, I was with him all the time. And that was amazing.
Michael Cowen:
Have you found a way to stop working until 10 o'clock all the time?
Maxey Scherr:
Oh, yes. But here's the thing. Now I'm a real serious morning person and I didn't use to be. So I wake up with no alarm at four in the morning. No alarm, no matter what side of the country I'm in. And so I'm always up. So it's funny, everyone at my office laughs at me, because I get a ton of work done before anybody wakes up. So now I don't have the 10:00, 11:00, 12:00 nighttime hours, but I do have the 4:00, 5:00, 6:00, 7:00 morning hours.
Michael Cowen:
Okay. Yikes.
Maxey Scherr:
Yeah,
Michael Cowen:
I'm so blessed. I've been able, I used to work crazy hours, but I'm able to delegate and have a good team so I get to have a life again.
Maxey Scherr:
It's a good feeling, right?
Michael Cowen:
You definitely need to build a team of people so you don't have to do that, although some people just can't help themselves. It's just they're driven. I worked for a lawyer out of Houston that was like that. He had more money than he could ever spend, tore down his mansion on River Oaks to build a bigger one. But he just kills himself when he works hard all the time. He'd be texting me from the beach on Cabo about cases.
Maxey Scherr:
It's kind of the culture in this practice and you have to fight against it. And I grew up in that culture. My dad is 70 years old and he still goes into work and drives, I think it's 25 miles, from his office to his home. So he drives about 50 miles every single day and works all the time and works crazy hours. And he had a huge verdict that paid out a couple of years ago. He definitely does not need to be working that much, but he still works more hours than most new attorneys and he's 70 years old.
Michael Cowen:
And God bless him for doing it. I don't want to do that when I'm 70. I do want to work when I'm 70, but I don't want to be working 40-hour weeks when I'm 70.
Maxey Scherr:
Yeah.
Michael Cowen:
We each have our own path and our own goals.
Maxey Scherr:
Right.
Michael Cowen:
So how about the trial skills part? You go to seminars, you can see lectures, is there anything you've done to develop your skills as a trial lawyer?
Maxey Scherr:
So I've got a background in theater and in psychology, and I think both of those really helped me quite a bit. I've tried a bunch of cases. I've been practicing 15 or so years. I've tried about 60 cases.
Michael Cowen:
Awesome.
Maxey Scherr:
Yeah. And I think just getting in there and having that experience, and I really credit my dad's firm for that experience because early on he really had the mentality of sink or swim, go out and do it. And so early on I just started trying cases and I did everything from slip and fall cases and car wreck cases all the way up to cases that ended up being really big, unexpected verdicts. And I think it's just the practice of getting in there and overcoming your fears. And I really do think that the theater experience helped me a lot. Lately I've been dabbling here and there in things like psychodrama and jury consultants and things like that, and a lot of the stuff that they're teaching me and I'm absorbing from them, I remember learning when I was in high school and theater classes and when I was doing plays in college.
Michael Cowen:
Well, psychodrama started off originally when Jacob Moreno developed it on a stage. They used to actually get up on a stage to do the psychodrama. So there is definitely a background there.
Maxey Scherr:
Yeah.
Michael Cowen:
Two things that come to mind when I hear that from you. One, I'm so happy to hear someone else has tried a bunch of cases because I keep having lawyers tell me, "Oh, well, back in your day you could try a bunch of cases, but now it's impossible to get to trial." It's like, no, it's not. There's lots of cases with crappy offers, and they're not that big of a case and you just go in there and roll up your sleeves and try them. I think we just have to decide that we're willing to try them, that we're willing to not have the best result every time. And then you get those surprising results, and I think that's how you build your reputation is when it might take three or four trials to get that really good result, but when you get a good result on a trial that nobody else could get or no one else would expect you to get, feels like, wow, if you can get that on a slip and fall case, what could you do with a bigger case if you build your way up?
Maxey Scherr:
Absolutely. I feel the same. I think you also set the precedent for your reputation on whether you're going to try cases or not in this type of field. And so if they know you're going to settle low or settle quickly, then that sets the standard for future cases. And if they know you're going to go try and that you're willing to go try the case that maybe other lawyers wouldn't have even accepted, and you're putting all of your eggs in that basket and bringing in whatever you need to bring in to properly try the case, then that also sets the precedent for future clients.
Michael Cowen:
It really does. Mallory and I were talking about a case and it's going to go to trial, and she was asking me about the budget. Like does it really makes sense to do these things. Yes, it does, because people need to know, win, lose or draw. If we're going to try the case, we're going to go all in. They're going to get everything. I don't care if I make money on that one case. This is about, yes, it's the client and we want to get them the best result, but it's also about our entire docket, our entire reputation. So when you go in, you got to go all in. You don't just go, well, we're probably going to lose. We'll just kind of half-ass it, not bring a live doctor, not hire the expert, not do the exhibits. No. If you're going to try the case, try it.
Maxey Scherr:
Yeah, if you're going to accept the case, try it. If you're going to accept the case as a trial lawyer, be willing to try it and put the money where your mouth is. And it may not be the biggest verdict you'll ever get. You may not win. But we have a, I think, obligation when clients come in and we say, "We're going to help you and you've been hurt." And all of us at some point in our life have been hurt.
I hurt my knee and I had to stop running. I was supposed to do a marathon and I couldn't do the marathon because... Yeah, it sucks. I was supposed to be doing it in another week in Chicago and I can't do the marathon, because I hurt my knee. But that pain, it doesn't go away. It hurts and it precludes you from working at times. It precludes you from doing what you love. I can't run. I haven't been able to run. And everyone here at these conferences knows I'd be the person waking up early in the morning and going for runs for a couple miles, and now I'm not doing that.
So if someone comes in and has a slip and fall case and they've just got a bum knee or a bum shoulder, to me, and if we accept the case, it's not just a bum knee. That's their body part. That's our duty. We're representing them and we do what we need to do to give them the best representation. And so when I hear people say the same questions and they say, "Is it worth it? Should we put the money into it?" My answer is always like, absolutely, let's do it.
Michael Cowen:
Or don't take the case and let someone else do it.
Maxey Scherr:
Exactly.
Michael Cowen:
No, I don't take a lot of the cases I used to try anymore, blessed with better cases, and I can't take time away from a family that lost somebody or paraplegic to go work on a slip and fall case with soft tissue now, just because it's not fair to me. It's not fair to the client, and it's not fun anymore.
Maxey Scherr:
Yeah.
Michael Cowen:
But starting off you need to do it. And there's something about the repetition. I don't know. Was there a number of trials where you felt like things changed for you? It got more comfortable, it got easier.
Maxey Scherr:
I don't know that it ever feels easy or comfortable. I work super... When I'm in trial, I have crazy hours. I'm always working. I'm always studying, I'm always reading. I've got books and files and binders all over the place, and I never really take it for granted. I always feel nervous and feel like there's a lot of weight on my shoulders, and it's worked for me. For me, I've not ever thought I'm going to go win this. I'm going to go beat this. And so I want to work hard and I stay hungry that way, I think.
Michael Cowen:
Yeah, I think the working hard stays, but as far as when you're in there and things happening naturally, I think there's something that happens around 50 trials, and there's definitely something that happens somewhere after a hundred trials where there is a flow state that's easier to get into. You still have to be prepared. You have to know your stuff. You need to know the file, know the exhibits. But when you're cross-examining people. When you're doing arguments, there's something about that repetition that you get a comfort level, a naturalness that develops with time, I think.
Maxey Scherr:
And confidence too, I think. And the other thing I think is how often you go to trial, because if you are in trial... Well, let's talk about the pandemic, Covid time. Even people like you or me who have tried a bunch of cases during Covid when no one was really trying cases, it felt, when I went back to trials in the last year, it was kind of like, how do we do this again? You get back in the courtroom and you know how to do it. We know how to try cases. We know we've tried a bunch of them. But I think the repetition is also imperative to keeping that confidence and comfort level up. So I like to go to trial as much as possible.
Michael Cowen:
Yeah. Well, you had a nice result in a trial against Swift in El Paso. Tell us about that case.
Maxey Scherr:
Okay. Okay, so that actually-
Michael Cowen:
Sorry, I got to let you brag about your [inaudible 00:15:20]. Come one.
Maxey Scherr:
Let me brag. I'm going to say one little self plug thing about bragging here. That was my very first trial with my new firm.
Michael Cowen:
Awesome.
Maxey Scherr:
With my solo firm.
Michael Cowen:
That's the way to start it.
Maxey Scherr:
Yeah, that's a way to start. And so in El Paso, we are a notoriously plaintiff-friendly city, but we don't have a notorious kind of reputation for having big verdicts. And so in this particular case, the client, the plaintiff, came in when I actually was at my old firm when she came in and I interviewed her, and it was one of the type of cases a lot of lawyers wouldn't want to take. In fact, someone at my old firm rejected it before I got it.
And she was working for Swift, and she was a transportation worker. She was a truck driver. And she was unloading at a Walmart and a trailer door that was defective fell and hit her on the head. After that happened, they ended up sending her to one of their company-type facilities, and they said, really, she didn't have too many problems. And she ended up saying to me, "No, I do have problems. I have these issues that are going on. I've started doing things like staring off into space. I've started shaking. I've started falling to the ground, and I have a little bit of background in brain injury."
And so ended up trying to get her into a neurologist under the company's plan, and they wouldn't do it. And I fought a whole appeal to get her in there. But the entire time, that case, it finally went to trial this march, but she was hurt over six years ago. And the entire time her company was saying she was lying, she was exaggerating. She needed to get back to work, because she didn't go back to work. They fired her. The lawyers on the other side kept saying, "This isn't a large case. She's not injured. This is someone lawyering the damages, if anything, and the liability is all her fault." And so it was one of the cases, like I said, that a lot of lawyers wouldn't have taken. In fact, some lawyers I know didn't take it. And when I ended up leaving and starting my own firm, I talked to her and said, "I'm leaving. I'm going out on my own. And she wanted to go with me."
She wanted to go with me because we had a good rapport. I kept fighting for her to get the right medical care that she needed. Everyone was calling her a liar. And I was wholeheartedly in support of the fact that she was not. And so the highest offer we ever got on that case was $300,000. Her medicals were, I think about $160,000. We went to trial in March, and they kept saying, "Yeah, if you prove liability, great, but you're not going to get a big verdict. I know you may win on liability, but you won't get big damages. Of course, you're in El Paso. Of course you're lawyering the damages. Of course she's not hurt." They kept saying. And everyone involved in this case is just kind of making it up.
And so we did three mediations. The highest number was ever $300,000. I got involved with Robert Collins, kind of right close to trial to see if he'd come help me try it with me. And we did some jury consulting and did some mock trials. My friend John Camillas came into town and he handled one of the mock trials that we were doing. We made some big decisions on how to try the case. He ended up trying the case with us. We got a $10.65 million verdict.
Michael Cowen:
That's incredible.
Maxey Scherr:
Yeah, it was the first eight figure verdict in El Paso since the nineties. The last one was my dad's in the nineties. And so they kept saying it's not going to happen, and it definitely made waves, and rightfully so. She was hurt. And calling her a liar, calling her family liars, terminating her. She's a very smart lady who was the breadwinner of her household, and now can't do what she used to do and is super hurt. And so it was a rightful verdict. They appealed it and ended up asking on the appeal for us to go to mediation. And we went to mediation, and they ended up resolving it for more than the amount of the verdict.
Michael Cowen:
Oh, that is so awesome.
Maxey Scherr:
Yeah. Yeah. I'm very proud of that verdict. And I'm proud of John Camillas. I'm proud of Robert Collins. I'm proud of my team. I'm proud that it was our first verdict, but more than anything, I'm really thankful that my client is finally able to get some closure. They treated her pretty poorly.
Michael Cowen:
That's a hell of a way to start a law firm.
Maxey Scherr:
Yeah.
Michael Cowen:
I want to ask you some follow-ups. I mean, first of all, we have people in all 50 states listening to this. So you said the driver was an employee of Swift. Why wasn't this case barred by workers' compensation?
Maxey Scherr:
So in Texas, an employer does not have to have workers' compensation. It's one of the very few states in this country that has this plan. And so workers don't always have the protection of workers' compensation. So in Texas, an employer can decide to have no insurance or they can decide to have some kind of lesser plan than Texas Workers' Compensation. In that case, it's considered a non-subscriber case. And so they lose their common law defenses that they would have had, and therefore any negligence, however slight, binds the company to the entire verdict. So non-subscriber cases are great cases in Texas. Most lawyers in Texas don't know how to handle non-subscriber cases, but should learn because those are really good cases. Any negligence, however slight, subjects the defendant to the full verdict. So if you get a 1% finding on the defendant and you get a 10.65 million verdict like I did, they pay the full $10.65 million.
Michael Cowen:
And luckily they didn't have an arbitration agreement like a lot of these companies have where I've tried a couple of arbitration, not so fun.
Maxey Scherr:
Not so fun, not so fun at all. I've got one in arbitration now. We try to fight. I try to fight every arbitration agreement, but Texas law is very hard on that.
Michael Cowen:
It is. So what was your liability theory? What did Swift do wrong that caused the trailer door to hit her?
Maxey Scherr:
Yeah, so they were in control of that equipment. They owned the trailer, they maintained the trailer. The trailer was defective, and she had called a couple of different times on perhaps other trailers or perhaps this trailer. So the drivers weren't assigned the same trailer on every trip. They were assigned the same tractor, and they would go pick up a loaded trailer at the facility in Los Lunas, New Mexico. So she went on this the night before this happened to her and picked up a sealed loaded trailer. And when she went to the first Walmart, because she was a dedicated Walmart driver at the time, so she would only transport from the Los Lunas facility to different Walmarts in El Paso. And so she went to the first Walmart in El Paso and had trouble. The door was sticking. She did not call Swift on that day because on previous occasions, she had called them multiple times. And what dispatch had told her, although by the way Swift disputes this happened, but this was her testimony. Her testimony was that dispatch would tell her, "Use your force, jam it open."
Michael Cowen:
Sounds right.
Maxey Scherr:
Yeah, open it, do everything you can. Get that open. And instead they should have put that out of order. So on this particular day, she didn't call it in, but she had been trained by them, use your force, get it open. And she couldn't. So she asked two Walmart workers to help her. So they helped get it open. And then at the second Walmart, the same thing happened. Two Walmart workers helped her jam it open, and they left to go get their dollies that they were going to unload the produce that she was bringing. And she walked in to get her numbers she needed off the chart and the door fell on her head.
Michael Cowen:
Ouch.
Maxey Scherr:
And it's not just a regular door. These are 305 pounds landing straight on her head.
Michael Cowen:
Ouch. So you talked about you have a company doctor saying, "Oh, there's nothing wrong with you. You don't have a brain injury. Or if you had one, it got better." I guess you have a neuroscience background. How does that help you on that type of case?
Maxey Scherr:
Oh, completely. So they hired, in this case, and in all my cases really, there are tons of experts on the defense side that they hire, and I do... That's my favorite thing to do. I think I was talking about this with you before the show. My favorite thing in the whole world of litigation, of trial work that I love to do as defense experts and especially the neuropsychs, especially the neurologist, the neuroradiologist, because I am a nerd when it comes to brain injury. I read about it all the time. I subscribe to all the journals. I'm friends with a bunch of brain injury doctors.
Michael Cowen:
Oh, wow.
Maxey Scherr:
Those are the circles I just get real geeked out to learn about and hang out with and learn from and research. And so I don't stop that for my own personal fun and personal reasons with a family member that has a brain injury. And so when I am getting ready to take defense expert depositions, I already do all my homework anyways. I learn all the stuff that I can hit them with, but particularly in brain injury, because that's near and dear to me.
Michael Cowen:
So as far as, first of all, when you see a client, because a lot of times, unfortunately, our clients, they go to a doctor, a non physician takes the history, the doctor spends 45 to 90 seconds talking to the client and they're thinking about neck, back. They're not doing the kind of detailed exam or spending the time with the people that you need to pick up some of the more subtle things from a brain injury that can really, while not obvious, can really have a serious lifelong effect in someone's life. What are things you look for to suspect, well, maybe this client's got a brain injury.
Maxey Scherr:
That is something that is really frustrating to me too, Michael. And so I'm super glad you brought this up. In the last three weeks alone, I have talked to two different lawyers. They've come to me and said, "I know you've got brain injury experience, and let me tell you about this case that I'm on. That I don't know that they've got a brain injury." They were talking about their clients, two different lawyers from two different firms, two different cases. And they said, "These are the back injury problems they have, but I heard you talking about brain injury and now I'm thinking maybe something could be there. But they've denied all these problems in front of their doctors and there's nothing in the notes about it." And I said, "Hey, can I talk to your client? Let's do a Zoom and I'll show you how to do a history and see what's going on with them."
And in both of those cases, both of those, one of them, the lawyer had represented the plaintiff for about three years and the other one for about a year and a half. In both of those cases, after talking through what their symptoms were and what they were going through, the lawyer ended up on both cases talking to me, both lawyers, and said, "We didn't even know to ask those questions. And so thank you for taking the time to do it." And now they're going to go and see their neurologist or whatever, their primary doctor and give this accurate history of what's going on and see what they are diagnosed with. And both of them were diagnosed with traumatic brain injury.
Michael Cowen:
So, but court though you've got a big gap now with the defense will argue, well, who knows what's happened in that year or three years?
Maxey Scherr:
Or it's lawyered, it's made up because there's... But it's not. I think it really depends on taking your time. And so when somebody comes in and they've been involved in a bad truck crash, for example, and they're telling you they've got headaches, or they're telling you that they may have lost consciousness, or that it was a real bad hit, or if you can look at the pictures and know that there might be something there. If there was acceleration, deceleration, whatever it may be, if you can go through and take the history that maybe doctors don't have the time to do, and there are a lot of different symptoms once you learn about brain injury, you can ask people about that they don't even know are potentially related to a brain injury. Staring off into space could be a form of a seizure. And most people don't know that. And most people don't know that that could be caused from a brain injury. And most people don't know that for a brain injury, you don't even have to have loss of consciousness.
Michael Cowen:
Yeah, absolutely not.
Maxey Scherr:
So yeah, so it's really just taking the time and kind of getting familiar with the science, or if you're not going to do that, have someone that is familiar with the science that will take the time to get a history so that you do justice to whatever the damages may be.
Michael Cowen:
Yeah. I think for me, that's a lot of times, does someone just seem off when you talk to them?
Maxey Scherr:
Yeah.
Michael Cowen:
Do you have a client, someone in the office has talked to the client and the client calls back later that day or the next day saying, "You never called me." And you know you did.
Maxey Scherr:
Yeah.
Michael Cowen:
Or they're just really hard to deal with. And then so they're really hard to deal with now. Some people just are hard to deal with in life, but you start talking to their friends, their family members, like this guy's kind of a jerk. Was he a jerk before? You put it a little more nicely, but was he always like that? And sometimes like, "Oh yeah, this guy's always been an a-hole." Okay, well then you got an a-hole. But other times, "No, he was a really nice person that he got hurt. And now we have anger management issues." My partner just did one of a spouse. They're getting divorced right now. And the defense course wanted to depose a spouse because of this really, really ugly divorce. But the soon-to-be ex-spouse was crying like, "No, this is not how she was before the brain injury." It's just not at all. And talk about it. Talk about a credible witness. When someone who's divorcing you at the time says you're hurt, you're probably really hurt.
Maxey Scherr:
And brain injury is so incredible because the sequelae and the symptoms that people may suffer they don't even have to look like the next one. They're so different. And it's heartbreaking. And I alluded to the fact that I have a family member, I have a niece that suffered pretty serious brain issues, and the way that she changed has been very noticeable and very heartbreaking for the family, and we're working through it all, but the way that that affects each and every person is so different, and the way that affects their family so different. And it's really just as lawyers about taking the time to see what this impact, what this crash, what this accident, whatever the case may be, what it's done to them and to their family.
Michael Cowen:
So I'm curious, there is a debate in the brain injury lawyer community on one issue is what do you think about neuropsychologists?
Maxey Scherr:
I love when the defense has neuropsychologists. That's my favorite thing ever. Most of the neuro-
Michael Cowen:
But for a neuropsychologist for our clients?
Maxey Scherr:
So I make a joke about it because the neuropsychologist, they kind of hate me. I've got a reputation of doing a very good job against defense neuropsychologists. I have a few neuropsychologists that I've used on cases that are really good and really qualified and really good at explaining the issues that the plaintiff's having to the jury. So I think it's case by case. If there's a lot of neuropsychological effects that can be found on testing and that can be found in the one-on-one conversations, a neuropsychologist may be helpful. I don't tend to use them on every case, but few and far between, I would say. And occasionally it's really helpful.
Voiceover:
Each year, the law firm of Cowen Rodriguez Peacock pays millions of dollars in co-counsel fees to attorneys nationwide on trucking and commercial vehicle cases. If you have an injury case involving death or catastrophic injuries and would like to partner with our firm, please contact us by calling 210-941-1301 to discuss the case in detail and see where we can add value in a partnership. And now back to the show.
Michael Cowen:
To me it's helpful just because you have someone, one that will take more time, if they're the right one will take more time to talk to the clients, especially if they'll, they call them collateral witnesses, but if they will interview other people that knew the injured person before and after to talk about the changes. Because so many people that have a brain injury have lack of deficit awareness, so they have problems that they don't realize. Either they're in denial or they just don't realize they have them. So you really need to talk to other people. But I do like when you have processing deficits, memory deficits to have some kind of objective measurement of it.
Maxey Scherr:
Yeah, definitely. But the other thing I like and in my Swift trial is we had almost exclusively treating doctors.
Michael Cowen:
Oh, that's awesome.
Maxey Scherr:
That's awesome. And so on the other side, they have to go pay people to come from out of town, and they get sometimes thousands of dollars an hour to say the person's not hurt, that they don't treat, don't have an obligation to treat or say the right thing about. And then if we're in trial, and we are showing the jury here are the treating doctors and here their obligations to their patients. And on the other side of things, you've got people who've made how much money to say they're not hurt.
Michael Cowen:
Absolutely. And I find the defense, they always cheat. They always misrepresent. They'll cite an article. You read the article, it does not say what they say it says,
Maxey Scherr:
Oh, heck yes. And I love reading the articles that they cite in their papers to look at exclusionary factors. Because a lot of times in brain injury, they'll cite different papers and say, look, they should have recovered in three to four weeks. But if you look in the fine print in those articles, for example, it may say anyone with a loss of consciousness would be excluded from this finding.
Michael Cowen:
Yeah.
Maxey Scherr:
So if you have loss of consciousness in your case, you get to throw that at them. You are the doctor, and you cited this article that specifically excludes my client? Why?
Michael Cowen:
And they don't read the article. They cherry-pick what they want, because they don't think we're going to read it. Because in 95% of the cases, they get away with it.
Maxey Scherr:
Oh yeah. 95 is conservative. Yes.
Michael Cowen:
Yeah. I've made so much money actually reading the darn articles.
Maxey Scherr:
Yeah. Yeah. It's just taking the time. You're awesome, Michael. It's just taking the time to do it. Taking the time to read. Taking the time to research who you're going to be talking to and taking the history with the client.
Michael Cowen:
So I want to go to your Swift case, and one thing I'm curious about is in a brain injury case, you worry about your client looking too bad, looking too good. What did you do as far as how did you present your client at trial?
Maxey Scherr:
Yeah, that's a good question and an answer that is probably going to shock a lot of people is that we did not present her at trial. She didn't testify.
Michael Cowen:
Why not?
Maxey Scherr:
So a couple of reasons. Her doctor, both her neurologist and the only expert that we had on this matter, a life care planner who evaluated her twice, both testified before the judge and the jury that stress causes her to have seizures, and that her seizures would kind of result in her either having the grand mal seizures where she'd shake and fall to the ground and foam at the mouth, or she would have this type of reaction where she would even urinate on herself.
Michael Cowen:
Oh my gosh.
Maxey Scherr:
And so the stress of having her at trial or having her testify would be two grand, and the doctors advised against it. So that was the main reason. The other reason is that brain injury is often called an invisible injury. She's real smart. If you look at her, her IQ level's very high. She doesn't look like someone who is suffering. She doesn't look like someone who has these problems that are going on, but they are going on. They're going on and she knows it, her family knows it, her household knows it. That's her life. But having her walk in as a seemingly perfectly healthy woman is also problematic. But most importantly, it's the doctor's testimony that it would be harmful for her. And so she didn't testify at all.
Michael Cowen:
I have a brain injury case that it was going really well, better than we thought it would go. And we had a client that depends on the day. Some days she was out of control. We had doctors that would just, I can't deal with this woman anymore. We're not going to treat her, because she's in our office yelling and screaming at people. And other days, she was the sweetest, nicest person that seemed really normal. This just had to do with, I think with sleep, pain levels, just was she triggered or not?
It wasn't like that before. She was a charge nurse at a woman's oncology unit at a hospital, so she could handle stress very well before she had her brain injury. And the case settled over the weekend after the first week of trial, and we hadn't called her yet. And I remember talking to Sonya like, it's too late now, because we didn't [inaudible 00:34:58] on it, and we didn't have any doctors saying that she shouldn't testify. But looking back like, yeah, we really probably should have... If we had to do this again, probably should have set it up to not have her testify. Because I think having her testify, it's too unpredictable. It's almost like a defense exhibit, because you don't see the true injury. It's the people around her that see it.
Maxey Scherr:
It's a tough call. A lot of people thought that... A lot of people, people who I respect and trust and have a lot of admiration for thought I was crazy for not calling her to trial. And in fact, in the defense closing argument, it was a huge chunk of their closing argument.
Michael Cowen:
Oh, I bet.
Maxey Scherr:
Yeah.
Michael Cowen:
I've always been too scared to do it. I've thought about it. Even on some of my back injury cases, I thought, what do we gain from calling our client? I've really been toying. I need to test it. I know we had one. We actually were toying with not calling them, and we focus grouped it with and without. And it didn't seem to make a big difference. We didn't have a big number jump when we were focus grouping it without him testifying and explaining he wasn't going to. But then he had this weird thing where he became this really nice person like the Sunday before trial and testified wonderfully.
Maxey Scherr:
Wow.
Michael Cowen:
But we weren't expecting that, so we had no problem calling him. But it's interesting. I wonder that I think we should rethink those defaults. We used to think the client had to be there, the whole trial. Now, I don't have the client there that much during trial typically. Then do we have to call the client? I think that's really a case by case thing. We should be... And I'm so glad that you had the courage to not listen. You know your case more than these other people, to not listen to them, because so much social pressure to do what everyone else does. But what everyone else does gets average results. By definition, what the average lawyer does gets average results. And if you want to have extraordinary results, you need to do different things.
Maxey Scherr:
Wow. I love that. I'm going to be thinking about those last two sentences.
Michael Cowen:
Yeah, I got to write that down somewhere.
Maxey Scherr:
Yeah, that's good stuff. Write it down.
Michael Cowen:
Okay. Well, you have another case involving FedEx, not your dad's nine figure FedEx case, but one of your FedEx cases that you said it's not your biggest, but it's one you're most proud of.
Maxey Scherr:
Yeah. Thank you for asking me about that case. So we represented... And this was back with my old firm, so it's not a case that's actively going on now. It's been resolved. But in El Pas, so El Paso is where I'm from. It's a border city, and this case that I'm talking about, we represented 35, maybe 36, what the public would call illegal immigrants. And so they were being deported from a facility in Arizona. And these 35 or 36, all men, were being driven on a bus from Arizona and being brought to the bridge in El Paso to be deported.
The contractor that was transporting them ended up getting in a pretty bad crash with a FedEx truck. They rear-ended a FedEx truck that was stopped on the highway. The crash was bad. These guys were hurt to varying levels of degrees. The driver of the bus was hurt. The co-driver of the bus was hurt. Seats actually came off of the bus, windows were shattered. The driver and the co-driver were taken immediately to get medical attention, and they were put on workers' comp, and they were given all of this medical treatment and the benefits. But these 35 or 36 men were put in another bus, left at the bridge, and deported.
And some of them were bleeding. Some of them had teeth that were missing. And so the Mexican consulate, who we were attorneys for, contacted us and my paralegal contacted my dad and me, and my paralegal and my discovery clerk went, and we all went and interviewed and got these men signed up and got them medical treatment. They all went to their various different homes throughout Mexico. And we brought a suit against FedEx and against the US government contractor.
It was in federal court. And what the defense lawyers in that case ended up doing is they set all of these men for depositions in Texas, in the United States, knowing that they couldn't show up. They had been deported, and so they didn't show up. We had advised them that that wasn't going to happen. And after that happened, these defense lawyers filed motions to dismiss and motions for summary judgment because there was no evidence of damages by the plaintiff. We went forward before a wonderful judge in El Paso and talked about the fact that this was a scheme, this was a game. These were Mexican citizens.
Michael Cowen:
It's not like they had the power to appear if they wanted to.
Maxey Scherr:
Exactly. And so we made arrangements, let's go depose them throughout Mexico. Let's do it via, at the time it was Skype. I didn't know about Zoom at the time. Let's do it via Skype. And they wouldn't do it. They said they have the right to sit in person and talk to them and watch their body movements. They don't agree to do it via Skype. We said, "Okay, let's go into the interior of Mexico and to pose them, we'll make all the arrangements." And they didn't do it.
So they had testimony and brought articles about their safety, about how it was dangerous for them. And they shouldn't be compelled to travel into Mexico, including Juarez, which is a five-minute walk from downtown El Paso. It's right there. It's our town. Juarez and El Paso are the same town really, where it's a sister community. And so these lawyers who are from El Paso and practicing in El Paso go before the judge and testify about how dangerous it is, and they're afraid, and they won't go into Mexico, even Juarez.
This judge, this incredible judge, ordered that depositions take place on the border. We all did these security clearances, and for a month, Michael, it was really cool. For a month, she ordered the US customs where the bridge was, where people would come and make a room available so that depositions could be there and that our clients could sit on the Mexico side of that building with us, and that the other lawyers could sit on the US side of that building. And so it was incredible, because we ended up bringing these men from all over Mexico, flying them in. They got medical treatment in Juarez. We brought them to the bridge. Some dropped out of the case though. A couple of them said, "We don't know what's happening. We're a little bit scared of this process. We're not trying to go to US customs and... You all deported us." And a couple wanted out.
But for the most part, all of the clients stayed in and trusted us, and we flew them into Juarez or some had to take buses, got them medical treatment so that we had a doctor in Juarez that was going to testify, and they had an IME that was performed. So it was pretty cool. My office was like a machine. We'd pick up at the airport, take them to the hotel, take them to their doctor's appointment, take them to the "IME" that the defense set up, and then bring them over to the bridge to give deposition testimony. And this was like a whole 30-day process. So every day for 30 days, this machine was going on. At the end of that process, after we got the doctor in Juarez and all these depositions done, that case resolved. And each and every single one of those clients got a settlement that they were happy about.
But I am just really proud of that case because they were treated poorly. Teeth were missing. Blood was... Like I said, some of them couldn't walk. They were bleeding, and they had real serious injuries, and they were just left on the bridge to fend for themselves.
Michael Cowen:
That's awful.
Maxey Scherr:
Yeah.
Michael Cowen:
Well, I'm glad you were able to do something. Yeah. There are a lot of... I'm from Brownsville, so we've handled a lot of cross-border litigation as well. There's a lot of logistical challenges. You can't necessarily get... Doctors in Mexico won't necessarily give you medical records, trying to make sure your clients get decent treatment when they're down there, getting a doctor to testify. There's a lot of issues. And then what do you do when the defense won't cooperate and your client cannot cross the border? You can sometimes parole them in if you go and beg, but once they've been deported, it's really tough.
Maxey Scherr:
Nearly impossible.
Michael Cowen:
I don't know how we did it. My co-counsel, just on one, it's awful. There was a woman lost two sons in a truck crash, and even though she'd been deported before, they let her come in to make the funeral arrangements, but I was surprised. We just figured, well, it doesn't hurt to ask.
Maxey Scherr:
Yeah, well, good for you. I'm glad she was able to do that. How sad.
Michael Cowen:
I had nothing to do with it other than saying, use the word humanitarian parole and be really nice.
Maxey Scherr:
Well, good advice. Good.
Michael Cowen:
But then you've got to make sure when you do that, they're on you. You are responsible to make sure that they are back in Mexico at the end of this period. And one, I think, I don't know what the consequence is to you. I know there's some. I don't remember what it is. But the other thing is you will never do it again if your person doesn't go back.
Maxey Scherr:
Oh, yeah. You won't get that privilege.
Michael Cowen:
Yeah, it is a challenge, but that's part of what we do is represent the people that really need representation.
Maxey Scherr:
It's a cool honor, isn't it?
Michael Cowen:
It really is. And it's fun, and it does feel good. Well, this is kind of totally outside of you, but you wanted me to ask you, and I think it's something that's really cool, your son is also making a name for himself.
Maxey Scherr:
Yeah. So my son, I early on told you that's what I'm the most proud of. He's just a very good human. He's a good kid. We moved to Houston when he was an incoming junior and he didn't know anybody in Houston, and he was really good at music. So he had taught himself to play the guitar and the piano and the drums and all these different instruments. He has always been a very social kid. He's always been very popular. He was invited to a party and he was sitting over at the corner in a party playing the guitar. And he'll tell you first he's super handsome. And so people were kind of circling around him. And one of the kids who circled around him was a big musician's kid. And so they ended up hearing him play the guitar and saying, "Hey, we need to get you in the music industry." So they brought him into the studio and he was recording at the studio where a rapper named Travis Scott records in Houston. And he did one song and it went super TikTok viral. He got dances from famous people. I say he's a great human, but the dance was a little bit vulgar. His songs are a little bit vulgar. It's lots of bad language, but it got 90 million hits on TikTok.
Michael Cowen:
Oh, my gosh.
Maxey Scherr:
Yeah. So even just yesterday, he was having meetings with record labels and things like that. He's a third year Baylor student, but he is a very successful hip hop musician. And I don't know how he got into hip hop. He was playing the Beatles and playing Nirvana and playing the Eagles music on his guitar. But like I said, he did one song that went TikTok viral, and since then has become a rapper. His rap name is Sinoda.
Michael Cowen:
Sinoda.
Maxey Scherr:
Yeah, which is Adonis spelled backwards. I told you. He's the first one to say he's handsome. That's a very humble name. Right? Adonis spelled backwards.
Michael Cowen:
I never would've thought Baylor and rap/
Maxey Scherr:
And they've had him perform at Baylor, and they've had him on a couple of different TV shows and things, and I'm like, how is Baylor promoted? Because if you listen to his music, you don't want kids around. It's lots of bad language.
Michael Cowen:
Baylor, where they used to kick you out of school if they found out that you did something they didn't approve of with the opposite sex or...
Maxey Scherr:
Yeah, they're changing or he's forced his way in. I don't know what happened to that.
Michael Cowen:
That's awesome. Well, that's got to be so awesome to see your kids succeed.I'm sure your dad feels that way when you go get a verdict.
Maxey Scherr:
He says so. He says so. And yeah. There's nothing that brings us more joy than that. I think watching my kid do anything is more important than anything I do, but particularly his success in college and in this music world. And he's just a great person.
Michael Cowen:
My oldest son's a freshman in college, and he just told me a few months ago he wanted to go to law school. He always said, "No, I want to forge my own path. I don't want to be a lawyer." And now for the first time, he's saying, "Yeah, I think I do want to go law school."
Maxey Scherr:
Did you try to convince him to be a lawyer or stay neutral?
Michael Cowen:
Hell no. No. What I've told him, because he's asked me before, because the way he would ask me, it's like, well, if I would become a lawyer, basically, will you just give me everything? And I'm like, no.
Maxey Scherr:
Yeah, good answer.
Michael Cowen:
And I said, really and truly, if you want to be a lawyer, and you think you'd enjoy it, then do it. And I would do everything I can to give you the resources and the connections to give you an opportunity to succeed. I said everyone I know whose parents pushed them to be a lawyer that doesn't really have the heart to do it, they are miserable. They either quit or they get to be alcoholics, drug addicts, just really unpleasant people. So just do what makes you happy.
Maxey Scherr:
Do what makes you happy.
Michael Cowen:
If you can find something that makes you happy and allows you to have the lifestyle that you're used to, it's a little better.
Maxey Scherr:
Definitely.
Michael Cowen:
Because he's very spoiled. I said I wasn't going to spoil a kid. And now it's like...
Maxey Scherr:
It's hard. It's hard when there's this wonderful human you created right there to just, yeah, to keep him humble. It's hard.
Michael Cowen:
Yeah. Just like, "Well, dad, we went to Scotland last year. I don't want to go two years in a row." It's like, oh my gosh. I would've died when I was in high school to be able to go to Europe.
Maxey Scherr:
I know.
Michael Cowen:
Yeah. "Can't we go to another continent. I've already been to Europe a few times." What have I done to this kid?
Maxey Scherr:
Yeah. But it's a good thing. I am excited that your son wants to go to law school and let's see all of the great things that he can do, because all we want is for our kids to surpass us, and for your kid to surpass you, it's going to be amazing, because you've already done so many great things.
Michael Cowen:
He hasn't finished his first semester of college yet, so let's wait and see. Like I said-
Maxey Scherr:
We'll wait. We'll give him time.
Michael Cowen:
If he wants to do it. I'm all for it. I'm all in. But like I said, it's up. I don't think one of us should force our kids to do... I let him pick his college. Given his selections, I would've picked a different one. He wouldn't apply where I went. This is what it is.
Maxey Scherr:
Yeah. Oh, Baylor was my last choice for my son, Tristan. I was trying to talk him into going to the East Coast. He was born in Boston. He got into some really good schools in Boston and he said, "No, this is my path and this is what I'd choose." And he's now talking about wanting to go to law school. He'd be good at law school. He'd be a good lawyer, but who knows? If you try and force your kids to do anything, it creates tons of resentments.
Michael Cowen:
That's what I learned. When I pushed him, he did the opposite. So when I let go, it's kind of like juries. When you let go, you get what you need. You trust, you let go. You trust people. They do the right thing. When you try to force it, because you don't trust them. That's when you get the resistance.
Maxey Scherr:
Those are beautiful words that I've been hearing pretty recently. Trust the jury.
Michael Cowen:
Yeah.
Maxey Scherr:
Trust the jury. And I think when you're able to do that, when you're able to go on the journey with the jury through the lens of the jury about what this case is about and trust them to do the right thing, that most oftentimes humans will do that.
Michael Cowen:
That has been the biggest change for me. Not just in my results at trial, but in the joy I get out of trying a case, from going to being a stressful experience to being a joyous, wonderful, relaxed, more relaxed experience. It's not that I don't work hard, it's just fun work. It's the difference between playing a game that you love and doing something that's working hard.
Maxey Scherr:
Just letting it go.
Michael Cowen:
Just letting it go.
Maxey Scherr:
Wow.
Michael Cowen:
But it's taken a lot of therapy, a lot of personal work, a lot of practice.
Maxey Scherr:
Yeah. That's not easy. And most lawyers have a lot of control issues.
Michael Cowen:
And then I have too, but I've really learned that I have given up the illusion of control because I can't control what a jury is going to do anyway. I can't control what a judge is going to do. I can control what I do. And so I just focus on me and let them just trust them to do the right thing. And if they don't, well at least the illusion gave me covered.
Maxey Scherr:
And you gave it a damn good effort.
Michael Cowen:
Yeah, because if not, then when you don't trust them, you're miserable throughout the trial.
Maxey Scherr:
That's good advice.
Michael Cowen:
Well, Maxey, thank you so much. If someone wants to find you, they have a case they want to talk to you about, they have something else. In the world, how do you find Maxey?
Maxey Scherr:
Yeah, so my website is www.scherrlawfirm.com.
Michael Cowen:
You better spell that.
Maxey Scherr:
Yeah. S-C-H-E-R-R. Www.scherrlawfirm.com.
Michael Cowen:
Awesome. Well...
Maxey Scherr:
Thank you for having me.
Michael Cowen:
Thank you so much for coming on, and thank you all for listening. I'm just going to shamelessly plug my book again. My book, Big Rig Justice, five and a half years of my life, everything I knew about trucking as of about six months ago is out from Trial Guides. Go to trialguides.com. You can order it if you like it, if you can give me a five star review on there, it would really just make my day. I don't make any extra money off that, but it just makes me happy. So thank you all so much for joining us today on Trial Lawyer Nation. And Maxey, thank you for coming on.
Maxey Scherr:
Thank you. And I can't wait to get your book.
Michael Cowen:
Thank you for joining us on Trial Lawyer Nation. I hope you enjoyed our show. If you'd like to receive updates, insider information, and more from Trial Lawyer Nation, sign up for our remaining list at triallawyernation.com. You can also visit our episodes page on the website for show notes and direct links to any resources in this or any past episode. To help more attorneys find our podcast, please like, share and subscribe to our podcast on any of our social media outlets. If you'd like access to exclusive plaintiff lawyer only content and live monthly discussions with me, send a request to join the Trial Lawyer Nation Insider Circle Facebook group. Thanks again for tuning in. I look forward to having you with us next time on Trial Lawyer Nation.
Voiceover:
Each year, the law firm of Cowen Rodriguez Peacock pays millions of dollars in co-counsel fees to attorneys nationwide on trucking and commercial vehicle cases. If you have an injury case involving death or catastrophic injuries and would like to partner with our firm, please contact us by calling 210-941-1301 to discuss the case in detail and see where we can add value in a partnership.
This podcast has been hosted by Michael Cowen and is not intended to, nor does it create, the attorney-client privilege between our host, guest, and any listener for any reason. Content from the podcast is not to be interpreted as legal advice. All thoughts and opinions expressed herein are only those from which they came.