Case Planning Tool: The Pre-Litigation Focus Group
As we’re approaching 2023, this is the perfect time for planning, especially if you have cases that are going to be filed in 2023. And one useful case planning tool is a pre-litigation focus group.
Maybe you’ve had this case for a couple of months now and you’ve done a little bit of investigating. So you have a little understanding of the facts around what happened, but you haven’t actually filed the case yet. This can also be the time for you to use a pre-litigation focus group for more in-depth planning.
The perfect time to use a focus group is when you have the information that allows you to make some predictions, and there aren’t any huge missing facts going on so you can pretty well predict the damages.
In this episode, I’m going to discuss planning for focus groups before you file a case, the importance of a pre-litigation focus group, what it looks like, what things you need to be looking for, and the benefits of using it.
In this episode, you will hear:
- What happens during the pre-litigation focus group
- Questions to ask and where to gather more information
- Factoring in your expenses in terms of time and money
- Ways to pick a case for a pre-litigation focus group
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Episode Transcript:
Elizabeth Larrick: Hello and welcome back. I’m your host, Elizabeth Larrick. Thank you so much for joining me for this episode.
We are rounding out 2022 and I thought this might be a good time to talk a little bit about planning. I’m going to be doing a [00:01:00] live LinkedIn this week on planning for 2023, but focus group planning. And I thought we could go a little bit more in depth here on this episode about specifically using focus groups before you file a case.
So in this scenario, you would have probably had this case for a couple of months, probably, probably done a little bit of investigating, understand the facts a little bit about what happened, but you haven’t yet filed it. And I love using a focus group at this point in time where you have information.
You can make some predictions. There aren’t any big missing facts going on. You can pretty well predict a little bit what the damages will be. But you can use a pre lit focus group for a little bit more in depth planning. And that’s what I kind of want to talk about today is why we would be [00:02:00] running these things, what we’d be looking for, and really when we talk about planning, how can we get our bang for our buck here?
And overall, when I talk about what kind of focus group this would be, We’re talking about a very short, more than likely, it’s going to at least take 50 minutes. You may be able to get it done shorter than that, but I always encourage people to set aside at least 50 minutes when you’re going to go in and talk to a focus group about a particular case, because you’re going to have a narrative.
You may need to set the scene with some photos. Now that’s different than if we’re just going to go in and talk about a concept, we’re going We’re going to ask some really straightforward questions. We’re going to practice some jury selection that’s different, but when you have a narrative and you need to set up some information and probably give visual, I always say, try to leave yourself like 50 minutes.
And so that’s what I would encourage you to do here is have very neutral narrative of the facts, some [00:03:00] pictures, right? And sometimes pictures can eliminate possibilities in people’s minds. And helpfully explain things in a very quick fashion so that you can move forward with asking questions. And this style of questioning would be very open and what do you see, how this happened, what would be your concerns, what sticks out, or what could be missing very big, broad questions.
You’re given information. You just want to get whatever their first reaction is to the information or what’s going on in the set of facts. And that kind of leads me to why we’re doing this. So again, we’re asking questions to really figure out what stands out to them, what would be concerns for them, and those can be good things.
All those can be bad things. So we definitely want to make sure that we’re trying to find any negative facts, any negative assumptions that people may be making negative attitudes that could be out there about it. And again, also positive things. Hey, what are the positive facts? [00:04:00] What are things that just stand out in people’s minds?
Where are they needing more information is always a big question I like to ask. And this kind of leads you to, with all this information, we’ve got a good column and a bad column. Where does this lead us and to where we need to gather more information? And that can mean, what is that expense going to be for me as the lawyer?
And by expense, I mean, how much time? Is that going to take, is it going to be a big time endeavor or not? How much money is that going to cost in the sense of case expenses? Am I to hire a third party, whether it may be an investigator or a company to do a forensic exam or a download a vehicle. And will I need to have any kind of expert then to get this information in?
And of course, we’re talking about witness statements or cell phone records, right? There are companies that will do all that, of course, for you and then experts out there as well. And so we get this information. So is it reliable? [00:05:00] If you’re just running one focus group, one pre lit focus group, is it really reliable?
Well, you could certainly do more than one. You’re not limited, but again, I always try to think about, let’s be conscious of our case expenses when it comes to these. I think you can, as long as you’ve conducted it in a very neutral way or had somebody else conduct it for you, I think you can pretty well rely on the information.
Sometimes we go in with what we think the jury is going to tell us, but the feedback that I continually get from folks that I work with is they always learn something new from the focus group at some kind of level, something new. So I think you’re always going to have new ideas or new thoughts, new attitudes that you’re going to see when you run focus groups.
And when we do our pre lit focus group, that allows us then to kind of plan going forward, thinking about discovery to get what other information may be out there. And again, you could be trying [00:06:00] to see, is there any more bad information out there? Is there any more good information out there? At this point, it may help you with your themes.
I feel like most people say most trial lawyers go into cases with several different themes. And again, they’ll go with the strongest theme where the evidence is. Sometimes you may just go in with one or two. And then again, where does that evidence fall to reinforce those themes? And of course, in planning terms of case expenses, which we’ve talked a little bit about, will you have to go find that information at what.
What money expense, and would you need an expert to be able to come in if you do? Do they provide education? What are they bringing in? All those things kind of help you with the case expenses. And sometimes we know what kind of insurance policy we’re dealing with on the other side or what kind of ability to recover from the other side.
And if you don’t, of course, that’s. Generally, number one thing we always get first, and that’s in the federal rules, initial disclosures, and in [00:07:00] most states as well, that’s kind of first blush, they’re supposed to get that right out the gate so then we can plan around that. When would you pick a case for this?
Well, you could have a case with an unusual fact pattern, maybe something that you haven’t experienced before. Maybe you’ve got a fact pattern with unusual damages, not really sure how strong a liability is. I mean, you’ve got really strong liability and not so sure about the damages. Lots of ways to pick a case to do this with.
Again, I think you’re going to learn at first blush what’s on people’s minds, and that may go one way or the other for you, but at least you’ve got that always in your mind as you’re working forward. I’ve got two particular examples to talk about with you, and the first one turned out to be negative. And in the sense that they, the lawyers I was working with, wanted to run a focus group before they filed this case because they just weren’t even sure they could get liability, or responsibility, on [00:08:00] the parties that had the Available resources for recovery.
Several different entities and defendants were involved. It’s a fairly simple fact pattern where an individual is working at a construction site, the The building itself, nearly done, just cosmetic finish out kind of stuff. And the person was working and suffered a catastrophic injury, paraplegic. And of course it’s under construction.
So there’s again, lots of construction folks involved, the building owner, the tenant, and unfortunately the responsible party who they needed to be tagged with. Liability did not come true in our focus group, and so it wasn’t necessarily they placed everything on the injured person, but more they placed it on a few other people in the line before it got to the party with the recoverable resources.
So as a lawyer, they got that information. [00:09:00] And they decided this would not be a case that they’d be able to file a lawsuit for because it was so tenuous, the law was going to be tenuous, the facts, again, according to the focus group was going to be pretty tenuous, but the case expense was going to be astronomical.
So high risk situation there. So that is where, again, focus groups significantly help people make that kind of decision. How risky is this particular case on all fronts? And another example that I have, medical malpractice case, and when we run a pre lit, Focus group for any kind of case, but really, sometimes we have more things that are medical related or scientific kind of related.
We always want to go in asking how much they really understand about what’s going on and understood. Where are the. So in this particular example, there were quite a few [00:10:00] gaps in understanding. People generally grasped all the narrative facts. But when you ask the big question, okay, so what caused the brain bleed?
What caused the heart attack? They don’t know. So that’s kind of where it’s like, all right, let’s figure out what they do know, ask some questions and really look at, okay, how can we best educate this? Do we need an expert? Probably not. Could we get this done with some demonstratives? Probably so. Some education pieces here and there, but really, as always, causation is a big issue for medical practice cases.
So helping get people down that road better with some kind of demonstration, demonstrative or education is always helpful. And those folks were a hundred percent moving forward because as far as liability and that kind of stuff. It was easy. It was a hundred percent good to go on that, but again, that causation part was a little bit missing.
So both those examples just gave the lawyers more information to assess [00:11:00] the good, the bad, assess the risk, assess, Hey, case expense wise, this is going to be a lot, not a lot. How much investment do we need to make in time and in money? And so that’s why I encourage you if you are, you know, it’s the beginning of 2023.
You probably got a few cases in there that you’re thinking, okay, well, these are going to be filed in 2023. Do you have any on that list? That you might need to check in, just double check and make sure, or that you want to learn a little bit more about before you start that discovery phase and have some themes in mind before you go into those depositions when you’re gathering up that evidence and looking for those documents, right, that will fit themes that the focus group gives back to you.
Well, I hope that this was helpful, lots of information there, but if you are thinking about doing a pre lit focus group, you have questions, please don’t hesitate to email me. I have lots of forms for virtual focus groups and also that can [00:12:00] help with in person focus groups as well. So just shoot me an email.
Now you can also find a lot of those forms on my website, LyricLawFirm. com until then, thank you so much.